FINANCIAL STATEMENT SCHEDULES
Schedule II
Valuation Accounts
Allowance for Doubtful Accounts Year ended April 30,
- ----------------------------------------- -----------------------------------
1996 1997 1998
(In thousands of dollars) --------- --------- -----------
Balance at beginning of period .......... $ 118 $ 353 $ 722
Additions--
Charged to expense ..................... 269 330 868
Acquisition related .................... 272 496 620
Deductions--Bad debts written off, net of
Recoveries ............................. (306) (457) (1,087)
------ ------ --------
Balance at end of period ................ $ 353 $ 722 $ 1,123
Exhibit 1
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CASELLA WASTE SYSTEMS, INC.
3,044,304 SHARES
CLASS A COMMON STOCK
(par value $0.01 per share)
Underwriting Agreement
----------------------
July ___, 1998
Goldman, Sachs & Co.,
CIBC Oppenheimer & Co., Inc.,
Donaldson, Lufkin & Jenrette Securities Corporation
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Casella Waste Systems, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 1,600,000 shares of Class A Common Stock ("Stock") of the Company and the
stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 1,444,304 shares. The aggregate of
3,044,304 shares to be sold by the Company and the Selling Stockholders is
herein called the "Firm Shares" and the aggregate of 456,645 additional shares
to be sold by the Company is herein called the "Optional Shares". The Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-_______)
(the "Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement") filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and the
Rule 462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective or such
parts of the Rule 462(b) Registration Statement, if any, at the time it became
or hereafter becomes effective, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder, 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers therein
to Items 7 and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement and/or
the Prospectus will conform, in all material respects, to the requirements of
the Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Goldman, Sachs &
Co. expressly for use therein or by a Selling Stockholder expressly for use in
the preparation of the answers therein to Items 7 and 11(l) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
2
of operations of the Company or any of its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction; the Company has no permanent office outside the State
of Vermont; and each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(vii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
(including, without limitation, the Stock) have been duly and validly authorized
and issued, are fully paid and non-assessable and conform in all material
respects to the description thereof in the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and, except as
set forth in the Prospectus, are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(viii) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable and will conform in all
material respects to the description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
and the compliance by the Company with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the
3
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of the
Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters
and under the rules of the NASD;
(x) Neither the Company nor any of its subsidiaries (A) is in
violation of its Certificate of Incorporation or By-laws or (B) other than any
defaults that will not have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting" (other
than the fourth paragraph under such caption relating to Regulation M under the
Securities Exchange Act of 1934, as amended ("Regulation M")), insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xiv) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xv) Arthur Andersen & Co., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder; and
4
(xvi) The Company and each of its subsidiaries has such
licenses, permits and other governmental authorizations as are required for the
conduct of their respective businesses and/or the ownership of their respective
properties as described in the Prospectus (except to the extent the failure to
obtain the same would not have a material adverse effect upon the Company and
its subsidiaries, taken as a whole), are in all material respects complying
therewith, and own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade-names, trademark
registrations, service mark registrations, copyrights and licenses necessary for
the conduct of such business and have not received any notice of conflict with
the asserted rights of others in respect thereof. To the best knowledge of the
Company, none of the activities or businesses of the Company or any of its
subsidiaries are in violation of, or cause the Company or any of its
subsidiaries to violate, any law, rule regulation or order of the United States,
any state, county or locality, or of any agency or body of the United States or
of any state, county or locality, the violation of which would individually or
in the aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or result of operations of
the Company and its subsidiaries.
(b) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this Agreement and
the Power of Attorney and the Custody Agreement hereinafter referred to, and for
the sale and delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power-of-Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the partnership
agreement of such Selling Stockholder if such Selling Stockholder is a
partnership (and the certificate of limited partnership of such Selling
Stockholder if such Selling Stockholder is a limited partnership), the articles
of organization and the LLC agreement (or operating agreement) of such Selling
Stockholder if such Selling Stockholder is a limited liability company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) Such Selling Stockholder has (or upon the exercise of
options or warrants therefor will have), and immediately prior to each Time of
Delivery (as defined in Section 4 hereof) such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good and
valid title to such
5
Shares, free and clear of all liens, encumbrances, equities or claims, will pass
to the several Underwriters;
(iv) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to offer, sell contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to stock incentive plans
existing on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your prior
written consent;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
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;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or supplements to
the Registration Statement and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(viii) Certificates in negotiable form, or option or warrant
agreements (together with a properly completed notice of exercise and payment
therefor), representing all of the Shares to be sold by such Selling Stockholder
hereunder have been placed in custody under a Custody Agreement, in the form
heretofore furnished to you (the "Custody Agreement"), duly executed and
delivered by such Selling Stockholder to the Company, as custodian (the Company,
in its role as custodian, is hereinafter referred to as the "Custodian"), and
such Selling Stockholder has duly executed and delivered a Power of Attorney, in
the form heretofore furnished to you (the "Power of Attorney"), appointing the
persons indicated in Schedule II hereto, and each of them, as such Selling
Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
execute and deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the Selling
Stockholders as provided in Section 2 hereof, to authorize the delivery of the
Shares to be sold by such Selling Stockholder hereunder and
6
otherwise to act on behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody Agreement; and
(ix) The Shares represented by the certificates and the option
or warrant agreements held in custody for such Selling Stockholder under the
Custody Agreement are subject to the interests of the Underwriters hereunder;
the arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable; the obligations of the Selling
Stockholders hereunder shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Stockholder or, in the case of
an estate or trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership, limited
liability company or corporation, by the dissolution of such partnership,
limited liability company, or corporation, or by the occurrence of any other
event; if any individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership, limited liability company or corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares shall be
delivered by or on behalf of the Selling Stockholders in accordance with the
terms and conditions of this Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such death,
incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not jointly,
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of the Selling
Stockholders, at a purchase price per share of $___________, the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Shares to be sold by the Company and each
of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and all of the Selling Stockholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 456,645 Optional Shares, at the purchase price per share
set forth in the paragraph
7
above, for the sole purpose of covering overallotments in the sale of the Firm
Shares. Any such election to purchase Optional Shares may be exercised only by
written notice from you to the Company, given within a period of 30 calendar
days after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to Goldman, Sachs & Co., for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer to accounts
specified by the Company and each of the Selling Stockholders, as their
interests may appear, in Federal (same day) funds. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004 (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York time, on July __, 1998 or such other time and date as Goldman, Sachs &
Co., the Company and the Selling Stockholders may agree upon in writing, and,
with respect to the Optional Shares, 9:30 a.m., New York time, on the date
specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs
& Co. of the Underwriters' election to purchase such Optional Shares, or such
other time and date as Goldman, Sachs & Co., the Company and the Selling
Stockholders may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the "First Time of Delivery", such time and date
for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof will be delivered at the offices of
Hale and Dorr LLP, 60 State Street, Boston, MA 02109 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
8
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration
9
Statement (as defined in Rule 158(c) under the Act), an earnings statement of
the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to stock plans existing
on, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent, except that the Company may issue such securities in exchange for all
of the equity or substantially all of the assets of a company in connection with
a merger or acquisition, provided that prior to any such issuance the recipient
of such securities shall have agreed with Goldman, Sachs & Co. in writing to be
bound by this provision for the remainder of such 90-day period;
(f) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
unless otherwise agreed to in writing by Goldman, Sachs & Co., as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations ("Nasdaq")
National Market System;
(j) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
10
6. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters that (a) the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
producing any Agreement among Underwriters, this Agreement, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses, if
any, in connection with the qualification of the Shares for offering and sale
under state securities laws as provided in Section 5(b) hereof, including any
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the NASDAQ; (v) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost
of preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 6; and (b) such Selling Stockholder will pay or
cause to be paid all costs and expenses incident to the performance of such
Selling Stockholder's obligations hereunder which are not otherwise specifically
provided for in this Section 6, including (i) any fees and expenses of counsel
for such Selling Stockholder, (ii) such Selling Stockholder's pro rata share of
the fees and expenses of the Attorneys-in-Fact and the Custodian, and (iii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder. In connection with
clause (b) (iii) of the preceding sentence, Goldman, Sachs & Co. agrees to pay
New York State stock transfer tax, if any, and the Selling Stockholder agrees to
reimburse Goldman, Sachs & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that, except as provided in this Section 6,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
11
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Morrison Cohen Singer & Weinstein, LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions (a draft of
each such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii), (vi) and
(ix) of subsection (c) below, and the paragraph following paragraph (x) of
subsection (c) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Hale and Dorr LLP, counsel for the Company, or, in the case of
the opinion set forth in Section 7(c)(iv) below and Section 7(c)(v) below (with
respect to the Company's subsidiaries) from local counsel to the Company
satisfactory to you, shall have furnished to you their written opinion (a draft
of such opinion(s) is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have been duly
and validly authorized and issued and are fully paid and non-assessable; and the
Shares conform to the description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of the State of Vermont;
(iv) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of the States specified by such counsel in its opinion; and all of the
issued shares of capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and are
directly or indirectly owned of record and, to such counsel's knowledge,
beneficially by the Company, free and clear to such counsel's knowledge of all
liens, encumbrances, equities or claims, except as set forth in the Prospectus
(such counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the current
or future
12
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others which would individually or in the aggregate
reasonably be expected to have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole;
(vi) This Agreement (and the consummation of the transactions
contemplated hereby) has been duly authorized by the Company; and this Agreement
has been duly executed and delivered by the Company;
(vii) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the Company
with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of the Company or any
statute applicable to the Company or its subsidiaries or any order (naming the
Company or any of its subsidiaries), rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except the registration
under the Act of the Shares, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters or under the rules of the NASD;
(ix) The statements set forth in the Prospectus under the
caption "Description of Capital Stock" and under the caption "Underwriting"
(other than the fourth paragraph under such caption, relating to Regulation M),
insofar as they purport to constitute a summary of the terms of the Stock and as
they purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete in all material respects; and
(x) The Company is not required to register as an "investment
company" or an entity "controlled" by an "investment company" under the
Investment Company Act.
In the case of the legal opinion of Hale and Dorr LLP, such
opinion shall also state that the Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related schedules and
other financial data contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the requirements of the
Act and the rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration
13
Statement or the Prospectus, no facts have come to such counsel's attention that
have caused such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and other financial data contained therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and other financial data contained therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
schedules and other financial data contained therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and they
do not know of any amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(d) The respective counsel for each of the Selling Stockholders,
as indicated in Schedule II hereto (but other than Selling Stockholders who are
selling 10,000 or fewer shares of Stock pursuant to this Agreement and the
Registrant Statement) each shall have furnished to you their written opinion
with respect to each of the Selling Stockholders for whom they are acting as
counsel, dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute valid and
binding agreements of such Selling Stockholder enforceable against such Selling
Stockholder in accordance with their respective terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to be sold by
such Selling Stockholder hereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement, the Power-of-Attorney
and the Custody Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Stockholder is a party or
by which such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or By-laws
of such Selling Stockholder if such Selling Stockholder is a corporation, the
Partnership Agreement of such Selling Stockholder if such Selling Stockholder is
a partnership (or certificate of limited partnership of such Selling Stockholder
if such Selling Stockholder is a limited partnership), Articles of Organization
or LLC Agreement (or Operating Agreement) of such Selling Stockholder if such
Selling Stockholder is a limited liability company or any order specifically
naming such Selling Stockholder, rule or
14
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the Shares to be
sold by such Selling Stockholder hereunder, except such as have been obtained
under the Act and such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of such Shares by the
Underwriters;
(iv) Immediately prior to such Time of Delivery based on an
examination of the Company's stock record books, such Selling Stockholder was
the sole record holder of the Shares to be sold by such Selling Stockholder
under this Agreement, free and clear of all liens, encumbrances, equities or
claims, and had full right, power and authority to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder hereunder; and
(v) Assuming that the Underwriters are bona fide purchasers
purchasing in good faith without notice of any adverse claim within the meaning
of the Uniform Commercial Code, upon the delivery of and payment for the Shares
to be sold by such Selling Stockholders as contemplated by this Agreement, each
of the Underwriters will acquire the Shares purchased by it from such Selling
Stockholders free of any adverse claims.
In rendering the opinion in paragraph (iv), such counsel may
rely upon a certificate of such Selling Stockholder in respect of matters of
fact as to ownership of, and liens, encumbrances, equities or claims on, the
Shares sold by such Selling Stockholder, provided that such counsel shall state
that they believe that both you and they are justified in relying upon such
certificate;
(e) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, Arthur Andersen &
Co. shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital stock
(other than as a result of the exercise of stock options or warrants outstanding
as of such dates or as otherwise set forth in the Prospectus) or long-term debt
of the Company or any of its subsidiaries or any change, or any
15
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in Clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the Nasdaq National Market; (ii)
a suspension or material limitation in trading in the Company's securities on
the Nasdaq National Market; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(h) The Shares at such Time of Delivery shall have been duly listed
for quotation on the Nasdaq National Market;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each stockholder, optionholder, officer and
director of the Company, substantially to the effect set forth in Subsection
1(b)(iv) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Stockholders, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company and
the Selling Stockholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Stockholders of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (f) of this
Section 7.
8. (a) The Company and each of the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged
16
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company and the
Selling Stockholders shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Goldman, Sachs &
Co. expressly for use therein; provided further, however, that each of the
Selling Stockholders on Schedule III hereto shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with information furnished by the Company or to the Company by any
person other than such Selling Stockholder; and provided further, however that
the aggregate liability of each Selling Stockholder pursuant to this Subsection
8(a) and Subsection 8(d) below shall not exceed the product of the number of
Shares sold by such Selling Stockholder and the initial public offering price of
the Shares as set forth in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company
and each Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or such Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such
17
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other 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 Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the 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
18
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 in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint; provided further, however, that (i) the aggregate
liability of each Selling Stockholder pursuant to this Subsection 8(d) and
Subsection 8(a) above shall not exceed the product of the number of Shares sold
by such Selling Stockholder and the initial public offering price of the Shares
as set forth in the Prospectus and (ii) no Selling Stockholder shall be required
to provide contribution hereunder with respect to any loss, claim, damage or
liability (or actions in respect thereof) in respect of which it was not
required to provide indemnification above under this Section 8 (other than if
such indemnification was not required because indemnification in the subject
circumstances was unavailable to the indemnified party as a matter of law or
public policy, or because of the inability to enforce the above provisions of
this Section 8).
(e) The obligations of the Company and the Selling Stockholders
under this Section 8 shall be in addition to any liability which the Company and
the respective Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or any Selling Stockholder within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company and the Selling Stockholders shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company and the Selling Stockholders that you have so arranged for
the purchase of such Shares, or the Company and the Selling Stockholders notify
you that they have so arranged for the purchase of such Shares, you or the
Company and the Selling Stockholders shall have the right to postpone a Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require
19
each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder) of the
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Stockholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, or if the Company and the Selling Stockholders shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company and the Selling
Stockholders to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Stockholders, except for the expenses to be borne by the Company and the
Selling Stockholders and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the
20
Representatives in care of Goldman, Sachs & Co., 85 Broad Street, New York, New
York 10004, Attention: Registration Department; if to any Selling Stockholder
shall be delivered or sent by mail, telex or facsimile transmission to counsel
for such Selling Stockholder at its address set forth in Schedule II hereto; and
if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: President; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholders by you on
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus one
for each counsel and the Custodian, if any counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and the Selling Stockholders
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
21
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Casella Waste Systems, Inc.
By:
-----------------------------------------
Name: John W. Casella
Title: President and CEO
The Selling Stockholders listed
in Schedule II hereto
By:
-----------------------------------------
Name: John W. Casella
Title: As Attorney-in-Fact acting
on behalf of each of the
Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof
at New York, NY.
Goldman, Sachs & Co.,
CIBC Oppenheimer & Co., Inc.,
Donaldson, Lufkin & Jenrette
Securities Corporation
By:
----------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
22
SCHEDULE I
Number of
Optional Shares
Total Number of to be Purchased
Firm Shares if Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
Goldman, Sachs & Co.
CIBC Oppenheimer & Co., Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
- ---------------------------
- ---------------------------
- ---------------------------
-------- -------
Total
23
SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
---------- ---------
The Company
The Selling Stockholders:
- -------------------------
- -------------------------
- -------------------------
Total ____________ ____________
- --------------------
24
SCHEDULE III
Stockholders subject to limited indemnity under paragraph 8(a).
25
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Securities
Act of 1933, as amended (the "Act") and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
separately furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the
26
applicable accounting requirements of the Act and the related
published rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included in
the Prospectus;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest financial statements included in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives,
27
except in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(vi) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraph (v)
above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
28
Exhibit 5
HALE AND DORR LLP
COUNSELLORS AT LAW
60 State Street
Boston, Massachusetts 02109
(617) 526-6000 Fax (617)526-5000
June 25, 1998
Casella Waste Systems, Inc.
25 Greens Hill Lane
Rutland, Vermont 05701
Re: Registration Statement on Form S-1
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-1 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of an aggregate of
5,500,949 shares of Common Stock, $.01 par value per share, of Casella Waste
Systems, Inc., a Delaware corporation (the "Company"), of which (i) up to
2,056,645 shares will be issued and sold by the Company (including 456,645
shares issuable upon exercise of an over-allotment option granted by the
Company) and 1,444,304 shares will be sold by certain stockholders (the "Selling
Stockholders") of the Company in an underwritten public offering (the "Follow-on
Shares") and (ii) 2,000,000 shares will be registered for issuance from time to
time as payment of the purchase price for certain acquisitions by the Company,
or for resale by the persons who acquire such shares in connection with such
acquisition (the "Shelf Shares", and together with the Follow-on Shares, the
"Shares").
The Follow-on Shares are to be sold by the Company and the Selling
Stockholders pursuant to an underwriting agreement (the "Underwriting
Agreement") to be entered into by and among the Company, the Selling
Stockholders and Goldman, Sachs & Co., CIBC Oppenheimer Corp. and Donaldson,
Lufkin & Jenrette Securities Corporation, as representatives of the several
underwriters named in the Underwriting Agreement, the form of which has been
filed as Exhibit 1 to the Registration Statement.
We are acting as counsel for the Company in connection with the sale by
the Company and the Selling Stockholders of the Follow-on Shares and the
registration for issuance or resale of the Shelf Shares. We have examined signed
copies of the
Casella Waste Systems, Inc.
June 25, 1998
Page 2
Registration Statement as to be filed with the Commission. We have also examined
and relied upon the Underwriting Agreement, minutes of meetings of the
stockholders and the Board of Directors of the Company as provided to us by the
Company, stock record books of the Company as provided to us by the Company, the
Certificate of Incorporation and By-Laws of the Company, each as restated and
amended to date, and such other documents as we have deemed necessary for
purposes of rendering the opinions hereinafter set forth.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
Our opinion in clause (ii) below, insofar as it relates to the Selling
Stockholders' Follow-on Shares being fully paid, is based solely on a
certificate of the Chief Financial Officer of the Company.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Follow-on Shares in accordance with the Underwriting Agreement
or the issuance of any Shelf Shares, to register and qualify the Follow-on
Shares or the Shelf Shares, as the case may be, for sale under all applicable
state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation Law statute and the federal laws of the United
States of America. To the extent that any other laws govern the matters as to
which we are opining herein, we have assumed that such laws are identical to the
state laws of the Commonwealth of Massachusetts, and we are expressing no
opinion herein as to whether such assumption is reasonable or correct.
Based upon and subject to the foregoing, we are of the opinion that (i)
the Follow-on Shares to be issued and sold by the Company have been duly
authorized for issuance and, when such Follow-on Shares are issued and paid for
in accordance with the terms and conditions of the Underwriting Agreement, such
Follow-on Shares will be validly issued, fully paid and nonassessable; (ii) the
Follow-on Shares to be sold by the Selling Stockholders have been duly
authorized and are validly issued, fully paid and nonassessable; and (iii) the
Shelf Shares have been duly authorized and, when issued as consideration for the
acquisitions contemplated by the Registration Statement as amended or
supplemented from time to time, will be fully paid and nonassessable.
Casella Waste Systems, Inc.
June 25, 1998
Page 3
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters. This
opinion is based upon currently existing statutes, rules, regulations and
judicial decisions, and we disclaim any obligation to advise you of any change
in any of these sources of law or subsequent legal or factual developments which
might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein and in the related Prospectus under the caption "Legal Matters." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
AMENDMENT NO. 1
TO REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1, dated as of June 3, 1998 (the "Amendment"), to
the Registration Rights Agreement dated as of December 19, 1997 (the
"Agreement"), by and among Casella Waste Systems, Inc., a Delaware corporation
(the "Buyer") and the persons listed on Schedule I hereto (the "Company
Stockholders"), is entered into by said parties.
WHEREAS, the Company Stockholders (other than Maureen Winters) have
received a loan from Goldman, Sachs & Co. ("Goldman, Sachs") and have pledged
the Merger Shares owned by them as collateral therefor (the "Pledge");
WHEREAS, the Buyer has agreed to extend to Goldman, Sachs certain
benefits of the Agreement in the event Goldman, Sachs exercises its rights as
pledgee, and Goldman, Sachs, by its signature below, has agreed to become party
to the Agreement;
WHEREAS, Maureen Winters has collared 39,000 of the Registrable Shares
owned by her, with a maturity date of January 8, 1999 (the "Collar");
WHEREAS, the Company Stockholders have exercised their rights under
Section 2(a) of the Agreement to require the Buyer to effect the registration of
Registrable Shares owned by such Company Stockholders under the Securities Act,
and the Buyer is in the process of seeking to register those shares (the "Demand
Registration") pursuant to a registration statement on Form S-1 (the "Demand
Registration Statement");
WHEREAS, the Buyer and the Company Stockholders desire to amend certain
other provisions of the Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Amendment, the parties hereto agree that certain subsections
of the Agreement shall be amended to read as indicated below.
Capitalized terms used herein which are not otherwise defined shall
have the meanings ascribed to them in the Agreement.
1. Section 3(a) is hereby amended by deleting the reference to "14
days" in the first sentence thereof and inserting "five days" in lieu thereof,
and by deleting the
-1-
reference to "10 days" in the first sentence thereof and inserting "two days" in
lieu thereof.
2. Section 4 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
"4. Registration Procedures. The Buyer shall:
(a) promptly prepare and file the Demand Registration
Statement with the Commission and use its best efforts to cause the Demand
Registration Statement to become and remain effective until the earlier of the
sale of all Registrable Shares covered thereby or December 19, 1998 (the
"Termination Date"), and as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Demand Registration Statement
and the prospectus included in the Demand Registration Statement as may be
necessary to keep the Demand Registration Statement effective until the
Termination Date; provided, that (i) upon the filing by the Buyer of a
registration statement on Form S-1 or S-3 for the sale of shares of its Common
Stock (the "Follow-on Offering"), the Buyer may terminate or withdraw the Demand
Registration Statement, and (ii) if at any other time the Buyer is engaged in
any other activity which, in the good faith determination of the Buyer's Board
of Directors would be required to be disclosed in the Demand Registration
Statement and such disclosure would, in the good faith determination of the
Buyer's Board of Directors interfere with the ability of the Buyer to consummate
such transaction, then the Buyer shall have the right, by written notice to the
Company Stockholders and Goldman, Sachs, to withdraw the Demand Registration
Statement (if it is not yet effective) and/or to require that the Company
Stockholders and any pledgees of Registrable Shares cease making offers of
Registrable Shares and to return all prospectuses to the Buyer. Following such
time as (i) the Buyer and Goldman, Sachs mutually agree that the Follow-on
Offering has been abandoned, and/or (ii) the Buyer discloses such other
transaction or such other transaction is abandoned by the Buyer, the Buyer shall
promptly use its best efforts to take such actions as may be necessary to
re-register the Registrable Shares (if the Demand Registration Statement has
been terminated) and provide the Company Stockholders and Goldman, Sachs (if
Goldman, Sachs is then still the pledgee of Registrable Shares) with revised
prospectuses, and following receipt of the revised prospectuses, the Company
Stockholders and Goldman, Sachs shall be free to resume making offers of the
Registrable Shares. For purposes hereof, any such registration statement which
is filed pursuant to this paragraph to re-register the Registrable Shares shall
be deemed to be a "Demand Registration Statement".
(b) as expeditiously as possible furnish to each selling
Company Stockholder and to Goldman, Sachs (if Goldman, Sachs is then still the
pledgee of Registrable Shares) such reasonable numbers of copies of the
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the selling
Company Stockholder or Goldman, Sachs may
-2-
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by the selling Company Stockholder;
(c) as expeditiously as possible use its best efforts to
register or qualify the Registrable Shares covered by the Demand Registration
Statement under the securities or Blue Sky laws of such states as the selling
Company Stockholders or Goldman, Sachs shall reasonably request, and do any and
all other acts and things that may be necessary or desirable to enable the
selling Company Stockholders and Goldman, Sachs to consummate the public sale or
other disposition in such states of the Registrable Shares owned by the selling
Company Stockholder; provided, however, that the Buyer shall not be required in
connection with this paragraph (c) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
(d) in connection with an underwritten public offering, to
furnish to each selling Company Stockholder and Goldman, Sachs a signed
counterpart, addressed to all such selling Company Stockholders and Goldman,
Sachs, of an opinion of counsel for the Buyer experienced in securities law
matters covering substantially the same matters with respect to the registration
statement and the prospectus as are customarily covered in opinions of issuer's
counsel delivered to underwriters in underwritten public offerings of
securities; and
(e) use its best efforts to comply with all applicable rules
and regulations of the Commission and make available to its security holders, as
soon as reasonably practicable, an earnings statement of the Buyer (in form
complying with the provisions of Rule 158 under the Securities Act) covering the
period of at least 12 months beginning with the first month following the
effective date of the registration statement.
If the Buyer has delivered preliminary or final prospectuses to the
selling Company Stockholders and/or Goldman, Sachs and after having done so the
prospectus is required to be amended to comply with the requirements of the
Securities Act, the Buyer shall promptly notify the selling Company Stockholders
and Goldman, Sachs, as the case may be, and, if requested, the selling Company
Stockholders and Goldman, Sachs shall immediately cease making offers of
Registrable Shares and return all prospectuses to the Buyer. Subject to the
provisions of Section 4(a) above, the Buyer shall promptly provide the selling
Company Stockholders and Goldman, Sachs with revised prospectuses and, following
receipt of the revised prospectuses, the selling Company Stockholders and
Goldman, Sachs shall be free to resume making offers of the Registrable Shares."
3. Section 5 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
-3-
"5. Allocation of Expenses. Goldman, Sachs will pay all Registration
Expenses of the Demand Registration and any other registrations under Section 2
or registrations required by Section 4(a) above (including any amendments or
supplements to the Demand Registration Statement) and the Buyer will pay all
Registration Expenses of all registrations under Section 3. For purposes of this
Section 5, the term "Registration Expenses" shall mean all expenses incurred by
the Buyer in complying with this Agreement, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees and
expenses of counsel for the Buyer and of the Buyer's accountants and the fees
and expenses of one counsel selected by the selling Company Stockholders to
represent the selling Company Stockholders, state Blue Sky fees and expenses,
but excluding underwriting discounts, selling commissions and the fees and
expenses of selling Company Stockholders' own counsel (other than the counsel
selected to represent all selling Company Stockholders)."
4. Section 6 of the Agreement is hereby deleted and the following shall
be inserted in lieu thereof:
"6. (a)(i) The Buyer agrees to indemnify and hold harmless Goldman,
Sachs, each of the selling Company Stockholders and each other person, if any,
who controls Goldman, Sachs or such selling Company Stockholder (collectively,
the "Sellers' Indemnified Parties") against any losses, claims, damages or
liabilities, joint or several, to which any of the Sellers' Indemnified Parties
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement under which Registrable
Shares are registered under the Securities Act or any preliminary prospectus
included in such Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Securities
Act (each, a "Preliminary Prospectus"), the form of final prospectus relating to
the resale of the Registrable Shares by the Company Stockholders (the
"Prospectus") in the form first filed pursuant to Rule 424(b) under the
Securities Act, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each of the Sellers' Indemnified Parties for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that (i) the Buyer shall not be liable to the
Company Stockholders or any controlling person thereof in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, Registration Statement or
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Buyer by the Company
Stockholders expressly for use therein, and (ii) the Buyer
-4-
shall not be liable to Goldman, Sachs or any controlling person thereof in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, Registration
Statement or Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Buyer by Goldman, Sachs
expressly for use therein. Notwithstanding the foregoing, the Buyer shall have
no obligations to Goldman, Sachs under this paragraph with respect to any
Registration Statement, Preliminary Prospectus or Prospectus used in connection
with an underwritten offering of the shares of the Buyer for which there is an
underwriting agreement containing indemnification provisions for the benefit of
Goldman, Sachs.
(ii) Each of the Company Stockholders, severally and not jointly, will
indemnify and hold harmless the Buyer and Goldman, Sachs and their respective
officers and directors and each other person, if any, who controls the Buyer or
Goldman, Sachs against any losses, claims, damages or liabilities, joint or
several, to which any of such persons may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, Registration Statement or Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, Registration
Statement or Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Buyer by such Company
Stockholder expressly for use therein; and will reimburse each such person for
any legal or other expenses reasonably incurred by such person in connection
with investigating or defending any such action or claim as such expenses are
incurred. The obligations of each Company Stockholder under this subparagraph
(a)(ii) shall be limited to an amount equal to the proceeds to each Company
Stockholder of Registrable Shares sold in connection with such registration;
(b) Goldman, Sachs will indemnify and hold harmless the Buyer and its
officers and directors and each selling Company Stockholder and each other
person, if any, who controls the Buyer or such selling Company Stockholder
against any losses, claims, damages or liabilities, joint or several, to which
any such person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
Registration Statement or Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements
-5-
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, Registration Statement or
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Buyer by Goldman, Sachs
expressly for use therein; and will reimburse each such person for any legal or
other expenses reasonably incurred by such person in connection with
investigating or defending any such action or claim as such expenses are
incurred;
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may otherwise have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party; and
(d) If the indemnification provided for herein is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein for any reason, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportions as is appropriate to reflect not only (i)
the relative benefits received from the sale of the Registrable Shares by the
Buyer and the Company Stockholders (it being understood that any sale of the
-6-
Registrable Shares by or for Goldman, Sachs as pledgee of such shares is to
repay loans to the Company Stockholders and is therefore for their benefit) but
also (ii) the relative fault of the Buyer, the Company Stockholders and Goldman,
Sachs in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Buyer, the Company
Stockholders or Goldman, Sachs and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Buyer, the Company Stockholders and Goldman, Sachs agree that it
would not be just and equitable if contributions pursuant to this indemnity
agreement were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Company Stockholders'
obligations in this subsection to contribute are several and not joint and no
Company Stockholder shall be required to contribute any amount in excess of the
proceeds to him, her or it of all Registrable Shares sold by him, her or it
pursuant to such Demand Registration Statement."
5. Section 9 of the Agreement is hereby amended by designating the
paragraph appearing therein as paragraph "(a)" and by inserting the following
paragraph after said paragraph:
"(b) Without limiting the generality of the foregoing, and in
consideration of Buyer's promises set forth herein and for other good and
valuable consideration, each of the Company Stockholders agrees that (other than
the Pledge by the Company Stockholders other than Maureen Winters and the Collar
by Maureen Winters) he, she or it will not offer, sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or indirectly, or
otherwise seek to reduce or limit his, her or its economic risk of ownership in,
any shares of Common Stock of the Buyer, or securities convertible into or
exchangeable for shares of Common Stock of the Buyer, until August 31, 1998,
otherwise than (i) as a bona fide gift or a transfer effected solely for estate
planning purposes, provided the donee or transferee agrees in writing to be
bound by the terms hereof, (ii) pursuant to an effective registration statement
filed by the Buyer covering such shares (other than the Demand Registration
Statement), or (iii) with the prior written consent of the Buyer. Goldman, Sachs
& Co. agrees to be bound by the terms of the foregoing with respect to the
shares of Common Stock of the Buyer
-7-
pledged to it by any of the Company Stockholders except in connection with the
exercise of its rights as pledgee of such shares following a bona fide margin
call on such shares. Each of the Company Stockholders and Goldman, Sachs agrees
and consents to the entry of stop transfer instructions with the Buyer's
transfer agent against the transfer of shares of Common Stock held by such
persons, except in accordance with the terms of this paragraph."
6. Section 10(a) of the Agreement is hereby amended by adding the
following paragraph immediately following the provisions for notice to the
Buyer:
"If to Goldman, Sachs, at 85 Broad Street, New York, New York 10004,
Attention: Special Execution;"
7. Section 10(c) of the Agreement is hereby deleted and the following
shall be inserted in lieu thereof:
"(c) Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), with the
written consent of the Buyer and the holders of at least 50% of the Registrable
Shares; provided, however, that any such amendment or waiver shall also require
the written approval of Goldman, Sachs to the extent the same would materially
and adversely affect the rights of Goldman, Sachs herein; and provided further,
however, that this Agreement may be amended with the consent of the holders of
less than all Registrable Shares only in a manner which affects all Registrable
Shares in the same fashion. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision."
8. The Buyer hereby agrees that the Winters Family Partnership, as
transferee of certain of the Registrable Shares, shall have the benefit of the
Agreement, subject to the execution and delivery by the Winters Family
Partnership of a counterpart of this Amendment. By its signature below, the
Winters Family Partnership agrees to be bound by the Agreement, as amended
hereby, and is hereby deemed included within the definition of "Company
Stockholders".
9. In all other respects, the Agreement shall remain in full force and
effect.
-8-
Executed as of the date first written above.
BUYER:
CASELLA WASTE SYSTEMS, INC.
By:
---------------------------------
Title:
------------------------------
COMPANY STOCKHOLDERS:
-------------------------------------
Joseph M. Winters
-------------------------------------
Andrew B. Winters
-------------------------------------
Brigid Winters
-------------------------------------
Sean Winters
-------------------------------------
Maureen Winters
WINTERS FAMILY PARTNERSHIP
By:
----------------------------------
General Partner
-9-
GOLDMAN, SACHS & CO.
By:
---------------------------------
-10-
Schedule I
----------
List of Company Stockholders
Joseph M. Winters
Andrew B. Winters
Brigid Winters
Sean Winters
Maureen Winters
Winters Family Partnership
-11-
SECOND AMENDMENT TO
LEASE AGREEMENT
(By and Between Casella Associates and Casella Waste Management, Inc.)
Agreement made this 20th day of November, 1997, among Casella Associates, a
Vermont partnership of Rutland, Vermont (hereinafter referred to as "Lessor")
and Casella Waste Management, Inc., a Vermont corporation with a principal place
of business at Rutland, Vermont (hereinafter referred to as "Lessee"). Any and
all references within this Agreement to "the parties" shall mean the
aforementioned Lessor and Lessee.
RECITALS
Whereas, the parties entered into a Lease Agreement dated August 1,
1993 and an Amendment to Lease Agreement dated December 9, 1994 (hereinafter
collectively referred to as the "Lease Agreement") with regard to premises
located at 25 Greens Hill Lane, Rutland, Vermont (hereinafter referred to as the
"Premises"); and
Whereas, the parties wish to add the following Sections to said Lease
Agreement:
(a) Section 14(a) - Capital Improvements, with respect to capital
improvement to be made to the premises by the Lessee; and
(b) Section 14(b) - Lessor's Option to Purchase, with respect to
capital improvements made by Lessee.
PROVISIONS
Now therefore, in consideration of the mutual terms contained herein, the
parties agree as follows:
A. Section 14(a) of the Lease Agreement shall be added as follows:
14(a). Capital Improvements. Capital Improvements shall be defined as
any and all improvements made to the Premises, including but not
limited to, all renovations, as well as any and all improvements made
to the real estate, including, but not limited to, paving and
landscaping.
Lessor has given Lessee consent to upgrade and make capital
improvements to the Premises to meet Lessee's immediate and future
needs, which will allow Lessee to consolidate all of their management
employees within the Premises. Said improvements commenced October,
1997 and will continue until the improvements are completed. The cost
of said capital improvements is currently estimated at $500,000.00,
which amount shall be paid by Lessee.
B. Section 14(b) of the Lease Agreement shall be added as follows:
14(b). Lessor's Option to Purchase Capital Improvements. Lessor shall
have the right to purchase from Lessee the capital improvements to the
Premises as made by Lessee in 14(a) above. The purchase price to be
paid by Lessor shall be on a declining scale based upon the net book
value of the capital improvements, depreciated on a 15-year scale
(which is the estimated life of the improvements made to Premises).
Lessor's option to purchase said capital improvements from Lessee shall
be valid until December 31, 2002. If Lessor fails to exercise its
option to purchase by December 31, 2002, Lessee shall have the right to
purchase the Premises from Lessor at the expiration of the initial term
of the Lease, on April 30, 2003, for Three Hundred Twenty-Four Thousand
Dollars ($324,000.00), which amount represents the fair market value of
the Premises prior to the capital improvements. As an example, Lessor's
purchase price of said capital improvements would be as follows:
Estimated Cost of Capital Improvements by Lessee: $ 500,000.00
Estimated Work Completion Date: 12/31/97
Monthly Depreciation (SL @ 15 Year Life): $ 2,777.78
Lessor's Purchase Price on 12/31/98: $ 466,667.00
Lessor's Purchase Price on 12/31/2000: $ 400,000.00
Lessor's Purchase Price on 12/31/2002: $ 333,333.00
C. The parties agree that in all other respects, the terms and conditions of
Lease Agreement dated August 1, 1993 and the Amendment to Lease Agreement dated
December 9, 1994 shall remain in full force and effect.
2
In witness whereof, the parties hereto have set their hands and seals on the day
and year first above written.
In the presence of: Casella Associates (Lessor),
/s/Joseph Fusco By: /s/John Casella
-----------------------------------------
John W. Casella, Partner
Casella Waste Management, Inc. (Lessee),
/s/Joseph Fusco By: /s/Jerry S. Cifor
-----------------------------------------
Jerry S. Cifor, Vice President & CFO
3
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent accountants, we hereby consent to the use of our reports
and to all references to our Firm included in or made a part of this
prospectus.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
June 25, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports and to all references to our Firm included in or made a part of this
prospectus.
This consent pertains to use of the unqualified report issued on the
financial statements of H.C. Gobin, Inc. as of December 31, 1995 and 1996 and
for the years then ended.
Barrett & Dattilio, P.C.
/s/ Barrett & Dattilio, P.C.
DATE: June 24, 1998
Quechee, Vermont
5
1,000
12-MOS
APR-30-1998
MAY-01-1997
APR-30-1998
1,946
0
18,235
(1,123)
333
22,594
118,464
36,780
189,033
18,776
0
0
0
115
81,745
189,033
0
118,067
0
69,878
36,695
868
6,797
5,042
2,385
2,657
0
0
0
2,657
(.39)
(.39)
5
1,000
12-MOS
APR-30-1997
MAY-01-1996
APR-30-1997
1,349
0
14,829
(722)
387
19,629
91,162
23,179
140,882
25,206
0
0
31,426
45
31
140,882
0
79,532
0
48,057
26,229
330
4,547
33
452
(419)
0
0
0
(419)
(2.29)
(2.29)
5
1,000
12-MOS
APR-30-1996
MAY-01-1995
APR-30-1996
470
0
7,378
(353)
152
9,203
54,669
16,714
64,893
11,408
0
0
22,896
34
(908)
64,893
0
42,829
0
25,137
15,215
269
2,813
(50)
144
(194)
0
(326)
0
(520)
(1.06)
(1.06)
