<PAGE>
To Become Effective Upon Filing Pursuant to Rule 462
As filed with the Securities and Exchange Commission on October 9, 1996
Registration No. 333-
-----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMPOST AMERICA HOLDING COMPANY, INC.
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW JERSEY 22-2603175
------------------------------- ---------------------------------
(STATE OR OTHER JURISDICTION OF I.R.S. EMPLOYER IDENTIFICATION NO.
INCORPORATION OR ORGANIZATION)
421320 Grand Avenue, Englewood, New Jersey 07631-4355
- ------------------------------------------ -------------
(Address of Principal Executive Offices) (Postal Code)
COMPOST AMERICA HOLDING COMPANY, INC.
-------------------------------------
EMPLOYEE AND CONSULTANT STOCK AND STOCK OPTION PLAN
---------------------------------------------------
(FULL TITLE OF PLAN)
Roger E. Tuttle, 320 Grand Avenue, Englewood, New Jersey 07631-4355
-------------------------------------------------------------------
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(201) 541-9393
- --------------------------------------------------------------------------------
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy To: Mark Gasarch, Esq.
1285 Avenue of the Americas, 3rd floor
New York, New York 10019
(212) 956-9595; (212) 956-7216 fax
Approximate date of commencement of proposed sale to the public.
AS SOON AS POSSIBLE AFTER THE REGISTRATION STATEMENT IS EFFECTIVE.
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities be Amount to be Price Per Offering Registration
Registered Registered Share Price Fee
- ------------- ------------ --------- --------- ------------
Common Stock, 765,000 shares $5.06 $ 3,870,900 $1,175.00
no par value
---------
TOTAL $1,175.00
<PAGE>
This document is a "Reoffer Prospectus" covering securities that have been
registered under the Securities Act of 1933.
PROSPECTUS
765,000 SHARES
COMPOST AMERICA HOLDING COMPANY, INC.
COMMON STOCK
(NO PAR VALUE)
The 765,000 shares (the "Shares") of Common Stock (the "Common Stock") of
Compost America Holding Company, Inc., a New Jersey corporation (the "Company"),
offered hereby are being sold by twenty-one (21) persons who are stockholders of
the Company (the "Selling Stockholders"). See "SELLING STOCKHOLDERS." The
shares may be offered by the Selling Stockholders from time to time in open
market transactions (which may include block transactions) or otherwise on the
Electronic Bulletin Board ("Bulletin Board") of the National Association of
Securities Dealers ("NASD") or in private transactions at prices relating to
prevailing market prices or at negotiated prices. See "PLAN OF DISTRIBUTION."
Eighteen of the twentyone Selling Stockholders have agreed to certain
restrictions on the sale of their Shares. See "SELLING STOCKHOLDERS;
Restrictions on Resale."
The Shares are listed and traded on Bulletin Board under the symbol "CAHC".
On October 8, 1996, the last reported sale price of the Company's Common Stock
on the Bulletin Board was $5.05 per share.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
FOR A DISCUSSION OF CERTAIN FACTORS WHICH SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE SHARES.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
____________________
The date of this Prospectus is October 9, 1996
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus in connection with the offering made hereby, and,
if given or made, such information or representations must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy, any securities covered by
this Prospectus to any person to whom, or in any jurisdiction in which, it is
unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the facts set forth in this
Prospectus since the date hereof.
____________________
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files annual and quarterly reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements and other information may be inspected and copied
at the public reference facilities maintained by the Commission, Room 1024, 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Copies of these
materials may be obtained from the Public Reference Section of the Commission,
450 Fifth Avenue, N.W., Washington, D.C. 20549, at prescribed rates.
This Prospectus constitutes a part of a Registration Statement on Form S-8
which the Company has filed with the Commission pursuant to the Securities Act
of 1933, as amended (the "Securities Act"), relating to the Shares (referred to
herein, together with amendments and exhibits, as the "Registration Statement").
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is hereby
made to the Registration Statement. Statements made in this Prospectus as to
the contents of any contract, agreement or other document referred to are not
necessarily complete; with respect to each such contract, agreement or other
document filed as an exhibit to the Registration Statement, reference is made to
such exhibit for a more complete description of the matter involved, and each
such statement shall be deemed qualified in its entirety by such reference.
Copies of the Registration Statement and the exhibits may be inspected, without
charge, at the offices of the Commission, or obtained at prescribed rates from
the Public Reference Section of the Commission at the address set forth above.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
April 30, 1996.
(b) The Company's Quarterly Report on Form 10-QSB for the fiscal quarter
ended July 31, 1996.
(c) The description of the Company's common shares contained in its
Registration Statement on Form 8-A, filed February 23, 1996, file no. 0-27832.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of its Quarterly
Report on Form 10-QSB for the fiscal quarter ended July 31, 1996 and prior to
the termination of the offering of the Shares, shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement or document so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Prospectus.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any and all of the documents
described above other than exhibits to such documents which are not specifically
incorporated by reference in such documents. Requests should be directed to:
Robert E. Wortmann, Secretary, Compost America Holding Company, Inc., 320 Grand
Avenue, Englewood, New Jersey 07631; (201) 541-9393.
THE COMPANY
The Company was incorporated on August 20, 1981 in the State of New Jersey
under the name Alcor Energy and Recycling Systems, Inc. ("Alcor") for the
purpose of designing, constructing, managing and operating resource recovery
facilities. On January 23, 1995 Alcor acquired all of the outstanding shares of
Compost America Company of New Jersey, Ltd. ("CANJ"), which had been
incorporated on December 17, 1993 in the State of Delaware for similar purposes,
and subsequently changed its name to Compost America Holding Company, Inc. The
Company conducts its business directly and through its wholly-owned subsidiary
CANJ. The Company incorporated Gardenlife Sales Company, Inc. in Delaware on
March 1, 1996 to
3
<PAGE>
handle future sales of compost by the Company. On June 15, 1995 the Company
incorporated Compost America Technologies, Inc., a Delaware corporation, as a
wholly-owned subsidiary to license certain rights to composting technology. CANJ
itself has six subsidiaries, Newark Recycling and Composting Company, Inc.,
incorporated in Delaware on May 10, 1994, and owned 75% by CANJ and 25% by
Prince Georges Contractors, Inc., doing business as Potomac Technologies, Inc.
("PTI"), an unaffiliated company, with NRCC itself owning 100% of American Bio-
Ag, and five wholly-owned subsidiaries, Monmouth Recycling and Composting Co.,
Inc., incorporated in Delaware on May 10, 1994, Chicago Recycling and Composting
Company, Inc., incorporated in Delaware on August 4, 1995, Gloucester Recycling
and Composting Company, Inc., incorporated in Delaware on August 15, 1994,
Philadelphia Recycling and Composting Company, Inc., incorporated in
Pennsylvania on March 8, 1995 and Miami Recycling and Composting Company, Inc.,
incorporated in Delaware on November 17, 1995, which itself owns all of the
outstanding common stock of Bedminster Seacor Services Miami Corporation, a
Florida corporation. Unless otherwise indicated, references to the Company
includes the Company and its subsidiaries and CANJ and its subsidiaries.
The Company is a development stage company which will construct and manage
enclosed organic material recycling compost manufacturing plants. Composting is
a method of converting the organic portion of garbage (Municipal Solid Waste--
"MSW") and sewage sludge into a peat moss like product with agronomic benefits.
The Company will be paid fees ("tipping fees"), just as landfills and
incinerators are paid, for receiving and processing the organic waste and sewage
sludge. The Company also intends to receive revenues from the sale of the
compost it produces. The Company hopes to be competitive by locating its plants
convenient to urban centers, thus eliminating the need to use local transfer
stations and reducing the transportation costs associated with hauling waste to
distant out-of-state landfills. The Company's first project will be a 200,000
square foot fully enclosed composting facility in Newark, New Jersey ("Newark
Project"), which is 75% owned by the Company through CANJ, and 25% owned by PTI.
The Company's executive offices are located at 320 Grand Avenue,
Englewood, New Jersey 07631-4355. The Company's telephone number is (201) 541-
9393; fax (201) 541-1303.
RISK FACTORS
An investment in the securities offered hereby involves a high degree of
risk, including, but not limited to, the risk factors described below.
Prospective investors should carefully consider the following risk factors
inherent in and effecting the business
4
<PAGE>
of the Company and this offering before making an investment decision.
1. NO OPERATING HISTORY. The Company is a development stage company and, as
such, it is subject to all of the risks inherent in the establishment of a new
business enterprise, including the absence of an operating history, lack of
market recognition for its products and the need to develop new banking and
financial relationships. The Company has not yet demonstrated an ability to
finance and profitably operate any compost facilities, including those of the
type proposed to be built by the Company.
2. NO ASSURANCE OF PROFITABLE OPERATIONS. There can be no assurance that,
even if the Company is successful in financing and completing the development of
its compost projects, that such operations will be profitable.
3. RELIANCE UPON FUNDING FOR CONTINUED COMPANY VIABILITY. The Company is
reliant upon funding from sources other than operations, primarily loans from
shareholders and private sales of restricted securities, for its continued
viability. Through July 31, 1996 funds raised from such loans and sales have
totalled $7,196,853 since the Company's inception in December, 1993. There can
be no assurance that the Company will be able to continue to raise such funds in
the future, in which event the future viability of the Company would be
doubtful.
4. RELIANCE UPON PROJECT FINANCING. The Company is reliant upon the
issuance of equity and debt to provide the funds necessary to finance the
construction, equipment and initial working capital for each of its compost
manufacturing plants. The Company and its bond underwriter are contemplating the
issuance of tax exempt bonds secured by these projects for this financing. There
can be no assurances that such tax exempt financing will be available or that
the Company will qualify for such financing, or that the security of each
project, including long term contracts, will be adequate. Should project
financing through the sale of tax exempt bonds prove to be unavailable to the
Company, management would have to explore alternate sources of financing, which
may be more difficult to obtain and be more costly to the Company. As a result,
the Company may be unable to fully implement its operating plan, may not be able
to achieve its full growth potential and its future viability would be doubtful.
In addition, tax exempt financing including a bond issue includes certain risk
factors, such as:
* Such issuance of tax exempt bonds requires a bond allocation. The demand for
such bond allocations are extremely competitive since there is generally
insufficient bond allocations available for the number of projects which are
seeking to be financed with tax exempt bonds. There can be no assurance that a
bond allocation will be available when the Company's underwriter is ready to
purchase bonds on behalf of the Company.
5
<PAGE>
* The Company's bond underwriter will require that the Company provide project
equity and/or subordinated debt at the bond closing. The Company has no written
agreements or arrangements for the provision of such financing necessary for the
bond financing. Without such commitments, it is unlikely that a bond financing
can be completed.
* The Company's bond underwriter is contemplating the issuance of unrated tax
exempt bonds without credit enhancement. The issuance of unrated bonds is a
"best efforts" private placement of securities. There can be no assurance that
there will be sufficient market demand from institutional investors to enable
the underwriter to sell the unrated bonds and thereby complete the project
financing.
* Additional permit modifications may be required by the bond underwriter. There
can be no assurance that the Company will be able to secure such permit
modifications.
* Waste procurement contracts may be required by the bond underwriter. There can
be no assurance that the Company will be able to secure these contracts on terms
acceptable to the bond underwriter.
* A material operating expense assumption in the financial projections for the
Newark Project upon which the bond underwriter relies is the arrangement for the
tax abatement of property taxes on this facility. There can be no assurance that
this tax abatement can be arranged on a timely basis to facilitate the issuance
of the tax exempt bonds.
5. COMPETITION IN THE WASTE INDUSTRY. The waste management industry in
which the Company plans to operate, is highly competitive and has for a number
of years been dominated by several large national and international companies
with substantially higher market recognition and substantially greater financial
resources. Additionally, there are many other companies, virtually all of which
have greater financial resources and market recognition than the Company,
engaged in the collection, conversion and disposal of waste products.
Consequently, the Company will be competing with such other companies for a
share of the available market and no assurance can be given that in the future
it will be able to obtain an adequate commercial customer base to implement its
operating plan.
6. CONTROL BY MANAGEMENT. Messrs. Roger Tuttle, Victor Wortmann, Robert
Wortmann, Alfred A. Rattie, George Chu, John Fetter and Pasquale Dileo, each of
whom is an officer and/or a director, beneficially controls, in the aggregate,
10,195,717 shares of the Company's Common Stock representing 66.0% of the
Company's total issued and outstanding shares of Common Stock. The Company's by-
laws do not provide for cumulative voting.
6
<PAGE>
Accordingly, Messrs. Roger Tuttle, Victor Wortmann, Robert Wortmann, Alfred A.
Rattie, George Chu, John Fetter and Pasquale Dileo will be able to elect a
majority of the Board of Directors and otherwise control the affairs of the
Company.
7. DEPENDENCE ON KEY PERSONNEL. The Company is substantially dependent on
the personal efforts and abilities of its operating officers and, in particular,
its President and Chief Executive Officer Roger Tuttle. The loss of any one of
these persons could have a materially adverse effect upon the Company's ability
to successfully carry on its business and achieve its long-term operating goals.
Additionally, as the Company begins commercial operations, it will require the
services of additional skilled personnel. There can be no assurance that it will
be able to attract persons with the requisite skills and training to meet its
future needs or, even if such persons are available, that they can be hired on
terms favorable to the Company.
8. GOVERNMENT REGULATION OF COMPOSTING BUSINESS. The Company's planned
operations are subject to substantial regulation by federal, state and local
regulatory authorities. Specific regulations vary by state and locality. Local
siting approvals require differing levels of design documentation and process
definition, usually requiring public approvals in one or more public hearings.
Following local approval, the Company must apply for and receive air, water,
solid waste and sewage sludge processing permits from state environmental
protection agencies. These permits will generally include specific limits within
which the facilities must operate. In the case of air and water permits, these
include limits on offsite emission and discharge releases. Compost product
composition may also be regulated, requiring continual monitoring to assure
compost product quality. Continued compliance with this broad federal, state and
local regulatory network is essential and costly. Additionally, there can be no
assurance that additional, more restrictive regulations will not be enacted in
the future or that the Company will be in a position to comply with such new
regulations. Consequently, management is unable to predict the effect upon its
future operations of such regulations except that potential investors should be
aware that the failure to comply with such regulations may have a materially
adverse effect on the Company and its operations in the future.
9. UNCERTAINTY AS TO MANAGEMENT'S ABILITY TO CONTROL COSTS AND EXPENSES.
Due to its lack of operating history, the Company cannot accurately project, or
give any assurance, with respect to management's ability to control the
Company's development or operating costs and expenses. Consequently, even if the
Company is successful in implementing commercial operations (of which there can
be no assurance), if management is not able to adequately control costs and
expenses, such operations may not generate any profit or may result in operating
losses.
7
<PAGE>
10. NECESSITY FOR AND DIFFICULTY OF PERMITTING. There can be no assurances
that the Company will be able to obtain the permits necessary to operate its
organic recycling compost manufacturing centers presently under development. If
and when these permits are issued, the Company must then operate the centers in
conformance with the permits. Further, management is unable to predict the
amount of time which will be required to obtain all necessary permits. Any
delays in such process will delay the Company's ability to begin commercial
operations and may have an adverse impact upon the Company's future operations.
11. NECESSITY FOR AND LACK OF ORGANIC WASTE SUPPLY CONTRACTS. As disclosed
above, management plans to secure a portion of the financing required for each
of its facilities based upon an assignment of revenue contracts with the
Company's waste customers. As of the date of this offering, no such contracts
have, as of yet, been entered into. Until the Company arranges these contracts,
the financing for its projects may not be secured as contemplated.
12. POTENTIAL ENVIRONMENTAL LIABILITY. It is possible that, at such time as
the Company's facilities are in operation, some of the wastes accepted at a
Company facility may contain contaminants which could cause environmental damage
and result in liabilities. In addition, any contaminants which would remain in
the finished compost may cause damage to plants or to land to which the compost
is applied. The Company has not projected and cannot accurately quantify the
costs resulting from any such contamination. As a result, the potential impact
on the Company's business is unknown.
13. NECESSITY OF PROFITABLE PRICING OF SUPPLY CONTRACTS. The Company will
depend upon the supply of MSW, organic waste and sewage sludge from various
waste generators at tipping fees and charges competitive with existing
competitive disposal methods. However, there can be no assurance that long term
contracts for such a supply of MSW or other organic wastes will be available at
prices sufficient for the Company to be profitable, or that the Company's
tipping fees for short term or open market MSW, organic waste and sewage sludge
will generate sufficient revenues for the Company to be profitable.
14. NO CONTRACTS FOR MARKETING OF COMPOST. The Company will produce
quantities of compost when its facilities are operating. There is no assurance
that the Company will be able to sell all of the compost it plans to produce. To
date, the Company has not entered into any contracts with users of compost for
its facilities which are under development. Should the Company not be able to
sell the compost, the Company may have to give the compost away and pay for its
transportation costs. In such event, the lack of anticipated revenues combined
with the additional costs would have a material adverse impact upon the
Company's future profits as well as its ability to continue its planned
composting operations.
8
<PAGE>
15. LIABILITY ASSOCIATED WITH COMPOSTING. The Company's processing and
manufacturing operations will be subject to inherent risks which could result in
property damage, personal injury, pollution or loss of production.
16. RISK OF INSUFFICIENT INSURANCE. While certain of the Company's products
carry express as well as implied warranties from their manufacturers, the
occurrence of an event not fully insured against and the determination of
liability of the Company for the consequent loss or damage, could result in
substantial losses to the Company.
17. RELIANCE UPON PROPRIETARY TECHNOLOGY. The Company will use, under
license and contract, certain proprietary technology. However, there can be no
assurance that this proprietary technology would withstand challenge from
competitors or that competitors will not gain access to this technology or
substantially similar technology.
18. POSSIBLE OBSOLESCENCE OF TECHNOLOGY. There can be no assurance that the
technology upon which the Company will rely will not become obsolete, leaving
the Company with no access to new technology needed to compete in the composting
industry.
19. IMPACT OF AUTHORIZATION AND DISCRETIONARY ISSUANCE OF PREFERRED STOCK.
The Company's Certificate of Incorporation authorizes the issuance of "blank
check" preferred stock with such designations, rights and preferences as may be
determined from time to time by the Board of Directors. Accordingly, the Board
of Directors is empowered, without shareholder approval, to issue preferred
stock with dividend, liquidation, conversion, voting or other rights which could
adversely effect the voting power or other rights of the holders of the
Company's Common Stock. In the event of issuance, the preferred stock could be
utilized, under certain circumstances, as a method of discouraging, delaying or
preventing a change in control of the Company, which could have the effect of
discouraging bids for the Company and, thereby, prevent shareholders from
receiving the maximum value for their shares. Although the Company has no
present intention to issue any shares of its preferred stock, there can be no
assurance that the Company will not do so in the future.
20. NO DIVIDENDS. To date, the Company has not paid any cash or other
dividends on its Common Stock and does not anticipate paying dividends in the
foreseeable future. Moreover, the Company's ability to pay dividends on its
Common Stock in the future may be limited by future preferred stock issuances or
by lenders to the Company.
21. LIMITED LIABILITY OF OFFICERS AND DIRECTORS. The Company's Restated
Certificate of Incorporation provides that the Company shall indemnify its
directors and officers against certain
9
<PAGE>
liabilities incurred with their service in such capacities to the fullest extent
permitted under New Jersey laws. In addition, the Restated Certificate of
Incorporation provides that the personal liability of directors and officers of
the Company and its stockholders for monetary damages will be limited.
22. POSSIBLE VOLATILITY OF SECURITIES. The trading prices of the Common
Stock could be subject to wide fluctuations in response to quarterly variations
in operating results, announcements of material business events by the Company
or its competitors, significant changes in the environmental regulations related
to the Company's business, the increase in the public "float" for the Company's
Common Stock, from 1,727,500 freely tradable shares to 2,492,500 freely tradable
shares as a result of this offering and other events or factors or to general
stock market volatility and fluctuations in price and volume.
23. SHARES AVAILABLE FOR RESALE AND POSSIBLE IMPACT UPON MARKET. As at
September 30, 1996, the Company had 15,457,941 shares of Common Stock issued and
outstanding, of which only 1,727,500 are "freely tradable." Upon the effective
date of this offering, an additional 765,000 shares will be freely tradable, for
a total of 2,492,500, and all other outstanding shares are and will be
"restricted securities" as that term is defined in the Securities Act of 1933,
as amended (the "Act"), and in the future may be sold only in compliance with
Rule 144 under the Act. In general, under Rule 144 a person (or group of persons
whose shares are aggregated) who has beneficially owned restricted shares of the
Company for at least two years, including any person who may be deemed to be an
"affiliate" of the Company (as the term "affiliate" is defined in Rule 144 of
the Act to include an officer, director or principal security holder of the
Company), is entitled to sell in normal brokerage transactions during the
periods when certain information regarding the Company is publicly available,
within any three-month period, an amount of shares that does not exceed the
greater of (i) the average weekly trading volume in the Company's shares during
the four calendar weeks preceding such sale or (ii) 1% of the total shares then
outstanding. A person who has not been an "affiliate" of the Company for the
three months prior to a sale and who has held restricted shares for at least
three years would be entitled to sell such shares without restriction. Sales of
the Company's Common Stock by present stockholders pursuant to Rule 144 or
otherwise, may, in the future, have a depressive effect on the price of the
Common Stock.
24. PENNY STOCK REGULATION. The Commission has adopted rules that regulate
broker-dealer practices in connection with transaction in "penny stocks." Penny
stocks generally are equity securities with price less than $5.00, other than
securities registered on certain national securities exchanges or listed on
NASDAQ. The penny stock rules require a broker-dealer, prior to a transaction in
a penny stock not otherwise exempt from the rules,
10
<PAGE>
to deliver a standardized risk disclosure document prepared by the Commission
that provides information about penny stocks and the nature and level of risks
in the penny stock market. The broker-dealer also must provide the customer with
current bid and offer quotations for the penny stock, the compensation of the
broker-dealer and its salesperson in the transaction, and monthly account
statements showing the market value of each penny stock held in the customer's
account. The bid and offer quotations, and the broker-dealer and salesperson
compensation information must be given to the customer orally or in writing
prior to effecting the transaction and must be given in writing before or with
the customer's confirmation. In addition, the penny stock rules require that
prior to a transaction in a penny stock not otherwise exempt from such rules,
the broker-dealer must make a special written determination that the penny stock
is a suitable investment for the purchaser and receive the purchaser's written
agreement to the transaction. These disclosure requirements may have the effect
of reducing the level of trading activity in the secondary market for a stock
that becomes subject to the penny stock rules. If the Company's securities do
become subject to the penny stock rules, investors in this Offering may find it
more difficult to sell such securities.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares offered hereby.
SELLING STOCKHOLDERS
The Selling Stockholders are the twenty-one (21) persons set forth below.
The Selling Stockholders acquired their shares of Common Stock of the Company in
connection with the Compost America Holding Company, Inc. Employee and
Consultant Stock and Stock Option Plan. All of those shares are being offered
by the Selling Stockholders hereby. Certain of the Selling Stockholders have
agreed upon restrictions of the resale of their Shares as set forth below.
Number of Number of
Shares Shares
Owned Owned After
Name of Prior to Number of Completion
Selling Stockholder Offering Shares Offered of Offering
- ------------------- --------- -------------- -----------
Louis G. Aboyoun 20,000 20,000 0
Jack Benson 15,000 15,000 0
Ronald K. Bryce 431,000 51,000 380,000 (1)
Julio Cato 20,000 20,000 0
David J. Egarian 75,000 15,000 60,000 (2)
Mark Gasarch 339,900 150,000 189,900 (3)
11
<PAGE>
Number of Number of
Shares Shares
Owned Owned After
Name of Prior to Number of Completion
Selling Stockholder Offering Shares Offered of Offering
- ------------------- --------- -------------- -------------
Gustav Henninburg 3,000 3,000 0
Robert W. Jones, III 75,000 15,000 60,000 (4)
Charles Lanktree 80,416 25,000 55,416
Michael J. Marchese 18,000 18,000 0
Peter May 10,000 10,000 0
Arsenio Milian 18,000 18,000 0
Allan Miller 17,500 17,500 0
Michael Papa 109,000 9,000 100,000
Edward Rodriguez 400,000 300,000 100,000 (5)
Robert Schlaak 17,500 17,500 0
Mark E. Stella 10,000 10,000 0
Deborah Swain 18,000 18,000 0
Robert Tardy 39,300 15,000 24,300
William Valois 15,000 15,000 0
Robert F. Young, Jr. 3,000 3,000 0 (6)
--------
Total 765,000 shares
(1) Does not include options to purchase 15,115 shares of the Company's common
stock, presently exercisable.
(2) Does not include options to purchase 150,000 shares of the Company's common
stock, presently exercisable.
(3) Does not include options to purchase 200,000 shares of the Company's common
stock, of which 100,000 are presently exercisable.
(4) Does not include options to purchase 75,000 shares of the Company's common
stock, presently exercisable.
(5) Does not include options to purchase 500,000 shares of the Company's common
stock, none of which presently are exercisable.
(6) Does not include the right to receive 150,000 shares of the Company's
common stock in January 1997.
RESTRICTIONS ON RESALE
Eighteen of the Selling Stockholders have agreed to certain restrictions on the
resale of their Shares as set forth below:
(continued on next page)
12
<PAGE>
Maximum Number of Shares
Name of Selling Shareholder To Be Sold Per Month
- --------------------------- --------------------
Louis G. Aboyoun 1,500
Jack Benson 1,250
David J. Egarian 1,250
Mark Gasarch (1)
Gustav Henninburg 1,000
Robert W. Jones, III 1,250
Charles Lanktree 2,400
Michael Marchese 1,000
Peter May 1,000
Arsenio Milian 1,250
Allan Miller 1,250
Michael Papa 3,000
Robert Schlaak 1,250
Mark E. Stella 1,000
Deborah Swain 1,250
Robert Tardy 1,250
William Valois 1,250
Rob Young 1,000
(1) Mark Gasarch has agreed not to sell more than 50,000 of the Shares in any
given twelve month period.
PLAN OF DISTRIBUTION
Subject to the restrictions on resale set forth above, the Shares may be
offered by the Selling Stockholders from time to time in open market
transactions (which may include block transactions) or otherwise on the Bulletin
Board or in private transactions at prices relating to prevailing market prices
or at negotiated prices. See "SELLING STOCKHOLDERS." The Selling Stockholders
may effect such transactions by selling Shares to or through broker-dealers, and
such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders and/or the purchasers
of Shares for whom such broker-dealers may act as agent or to whom they sell as
principal or both (which compensation as to a particular broker-dealer might be
in excess of customary commissions).
The Selling Stockholders and any broker-dealer acting in connection with
the sale of the Shares offered hereby may be deemed to be "underwriters" within
the meaning of the Securities Act, in which event any discounts, concessions or
commissions received by them, which are not expected to exceed those customary
in the types of transactions involved, or any profit on resales of the Shares by
them, may be deemed to be underwriting commissions or discounts, under the
Securities Act. The Company will not receive any proceeds from the sale of the
Shares.
The costs, expenses and fees incurred in connection with the registration
of the Shares will be paid by the Company.
13
<PAGE>
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon for the
Company and the Selling Stockholders by Mark Gasarch, Esq. Mark Gasarch owns
290,000 shares of the Company's common stock (of which 150,000 shares are
included in this offering) and holds options to purchase an additional 200,000
shares.
EXPERTS
The financial statements of the Company as of April 30, 1996 and 1995 and
for each of the years in the two-year period ended April 30, 1996 and from
December 17, 1993 (inception) through April 30, 1996, have been incorporated by
reference in this Prospectus and Registration Statement in reliance upon the
report of Zeller Weiss & Kahn, independent accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
14
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON
IS AUTHORIZED TO GIVE ANY INFORMATION
OR MAKE ANY REPRESENTATIONS IN CONNECTION
WITH THIS OFFERING OTHER THAN THOSE _______________
CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR COMPOST AMERICA HOLDING COMPANY, INC.
REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE COMPANY. 705,000 SHARES OF COMMON STOCK
NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER _______________
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. PROSPECTUS
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ________________
THE SHARES OF COMMON STOCK OFFERED HEREBY BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER
OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH OCTOBER 8, 1996
THE PERSON MAKING SUCH OFFER OR SOLICITATION
IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
_________________
TABLE OF CONTENTS
Page
----
Available Information.............. 2
Incorporation of Certain........... 3
Documents by Reference
The Company.........................3
Risk Factors........................4
Use of Proceeds....................11
Selling Stockholders...............11
Plan of Distribution...............13
Legal Matters......................14
Experts............................14
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION, and
Item 2. Registrant Information and Employee Plan Annual INFORMATION
The information required by Part I., Items 1 and 2 is included in documents sent
or given to participants in the Compost America Holding Company, Inc. Employee
and Consultant Stock and Stock Option Plan pursuant to Rule 428 (b) (1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
(NOT REQUIRED IN THE PROSPECTUS)
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the information requirements of the Securities
Exchange Act of 1934, as amended ("Exchange Act") and, in accordance therewith,
files reports with the Securities and Exchange Commission ("Commission"). The
documents listed below are hereby incorporated by reference in this Registration
Statement on Form S-8; and all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c) 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference in this Registration Statement
on Form S-8, and shall be a part hereof from the date of the filing of such
documents.
(a) The Registrant's annual report on Form 10-KSB for the fiscal year
ended April 30, 1996.
(b) The Registrant's quarterly report on Form 10-QSB for the fiscal
quarter ended July 31, 1996.
(c) All other reports filed by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act since July 31, 1996; and
(d) The description of the Common Stock which is contained in the
Company's registration statement on Form 8-A, filed February 23, 1996,
file no. 0-27832, and other reports filed under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
II-1
<PAGE>
Item 4. DESCRIPTION OF SECURITIES
not applicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Shares offered hereby will be passed upon for the
Company and the Selling Stockholders by Mark Gasarch, Esq. Mark Gasarch owns
290,000 shares of the Company's common stock (of which 150,000 shares are
included in this offering) and holds options to purchase an additional 200,000
shares.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Title 14A of the New Jersey Statutes, as amended, provides that, except in
cases of breach of duty of loyalty, bad faith, knowing violation of law or
receipt of improper personal benefit, an officer or director of a corporation
shall not be personally liable to a corporation or to its shareholders for
damages for breach of duty if and to the extent that liability has been
eliminated or limited in the corporation's certificate of incorporation.
Title 14A provides for indemnity and authorizes other action to protect any
person who is or was serving as a director, officer, employee or agent of a
corporation or who is or was serving, at the request of the corporation, as a
director, officer, trustee, employee or agent of any domestic or foreign
corporation or any partnership, joint venture, sole proprietorship , trust or
other enterprise, whether or not for profit, or any director, officer, employee
or agent of any constituent corporation absorbed by the indemnifying corporation
in consolidation or merger (such person being referred to as a "corporate
agent"). Any corporation is given the power to indemnify a corporate agent who
is or was a party to or was a party to or threatened to be made a party to. any
proceeding by reason of the fact that the corporate agent was serving or had
served the corporation at the request of the corporation as a corporate agent,
against his expenses and liabilities in connection with such a proceeding if the
proceeding is not one brought by or on behalf of the corporation and if: (1)
Such corporate agent acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and (2) with
respect to any criminal proceeding, such corporate agent had no reasonable cause
to believe his conduct was unlawful and against his expenses if the proceeding
is brought by or in the right of the corporation and if such corporate agent
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; provided, however, that no
indemnification shall be provided in respect of any claim, issue or matter as to
which such
II-2
<PAGE>
corporate agent shall have been adjudged to be liable to the corporation, unless
and only to the extent that the court in which such proceeding was brought shall
determine, upon application, that despite an adjudication of liability, but in
view of all of the circumstances of the case the corporate agent is fairly and
reasonably entitled to indemnity for such expenses as the court shall deem
proper. Unless otherwise ordered by the court, such indemnification may be made
in a specific case only upon a determination that the corporate agent had met
applicable standards of conduct. Unless otherwise provided in the corporation's
certificate of incorporation or its by-laws, such determination shall be made by
the board of directors or a committee thereof, acting by a majority vote of a
quorum consisting of directors who were not parties to or otherwise involved in
the proceeding or by independent legal counsel, in written opinion, if
designated by a majority vote of a quorum of disinterested directors or by
shareholders if authorized by the certificate of incorporation, by-laws,
resolution of the board of directors or resolution of the shareholders. Expenses
incurred by the corporate agent in connection with such a proceeding may be paid
by the corporation in advance of the final disposition of the proceeding as
authorized by the board of directors upon their receipt of an undertaking of the
corporate agent to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified. A corporation is authorized to purchase
and maintain insurance on behalf of its corporate agents.
Article SECOND of the Registrant's restated certificate of incorporation
provides that:
(3) Except to the extent prohibited by law, no director or officer of the
corporation shall be personally liable to the corporation or its
shareholders, provided that a director or officer shall not be relieved
from liability for any breach of duty based upon an act or omission.
(a) in breach of such person's duty of loyalty to the corporation or its
shareholders;
(b) not in good faith or involving a knowing violation of the law or
(c) resulting in receipt by such person of an improper personal benefit
(4) To the extent permitted by law, the corporation shall defend, indemnify and
hold its officers and directors harmless for all acts and omissions in the
performance of their duties for the corporation, provided that such acts or
omissions are made in good faith and do not involve a knowing violation of
the law nor result in an improper personal benefit to the officers or
directors.
II-3
<PAGE>
No other statute, charter provision, by-law, contract or other arrangement
insures or indemnifies any controlling person, director or officer of the
Registrant against liability incurred in such capacity.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission (the "Commission") such indemnification is against public
policy as expressed in that Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
4.1 Compost America Holding Company, Inc. Employee and Consultant Stock and
Stock Option Plan (1)
5.1 Opinion of Mark Gasarch, Esq. (1)
23.1 Consent of Mark Gasarch, Esq. (included in Exhibit 5.1)
23.2 Consent of Zeller Weiss & Kahn, Independent Accountants (1)
__________________
(1) Filed herewith.
Item 9. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes to file during any period in
which offers or sales are made, a post-effective amendment to this Registration
Statement to include any material
II-4
<PAGE>
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
2. The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
3. The undersigned Registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
4. The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration statement
related to the securities offered therein, and the offering of such securities
at such time, shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant int he
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE TOWN OF ENGLEWOOD, STATE OF NEW JERSEY ON OCTOBER 7, 1996.
Date: COMPOST AMERICA HOLDING COMPANY, INC.
October 7, 1996 (Registrant)
By /s/ Roger E. Tuttle
----------------------------------------
Roger E. Tuttle, President and Principal
Executive Officer
By /s/ Anthony Cipollone
----------------------------------------
Anthony Cipollone, Comptroller,
Principal Financial and
Accounting Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
ROGER E. TUTTLE October 7, 1996 /s/ Roger E. Tuttle
President, Principal Executive ---------------------------
Officer, Director Roger E. Tuttle
ANTHONY CIPOLLONE October 7, 1996 /s/ Anthony Cipollone
Comptroller, ---------------------------
Principal Financial and Anthony Cipollone
Accounting Officer
JOHN B. FETTER October 7, 1996 /s/ John B. Fetter
Executive Vice President, --------------------------
Treasurer, Director John B. Fetter
VICTOR D. WORTMANN October 7, 1996 /s/ Victor D. Wortmann
Chairman, Director --------------------------
Victor D. Wortmann
ROBERT E. WORTMANN October 7, 1996 /s/ Robert E. Wortmann
Secretary, Director --------------------------
Robert E. Wortmann
PASQUALE E. DILEO October 7, 1996 /s/ Pasquale E. DiLeo
Director -------------------------
Pasquale E. Dileo
Roger E. Tuttle, John B. Fetter, Victor D. Wortmann, Robert E. Wortmann and
Pasquale E. DiLeo constitute all of the members of the Registrant's Board of
Directors.
II-6
<PAGE>
EXHIBIT 4.1
COMPOST AMERICA HOLDING COMPANY, INC.
EMPLOYEE AND CONSULTANT STOCK AND STOCK OPTION PLAN
1. PURPOSES
The purpose of the Compost America Holding Company, Inc. Employee and
Consultant Stock and Stock Option Plan (the "Plan") is to aid Compost America
Holding Company, Inc. and its "subsidiaries" (as defined under the federal
securities laws) (together the "Company") in attracting and retaining highly
capable employees and consultants and to enable selected key employees and
consultants or other representatives of the Company to acquire or to increase
their ownership interest in the Company on a basis that will encourage them to
perform at increasing levels of effectiveness and use their best efforts to
promote the growth and profitability of the Company. Consistent with these
objectives, this Plan authorizes the granting to selected key employees and
consultants of options to acquire shares of the Company's Common Stock, no par
value ("Common Stock") or the granting of Common Stock, pursuant to the terms
and conditions hereinafter set forth.
Securities granted hereunder may include (i) "Non-Qualified Options" (which
term, as used herein, shall mean options that are not intended to be "incentive
stock options" within the meaning of Section 422 of the Internal Revenue Code
(the "Code")), and (ii) restricted and unrestricted grants of shares of common
stock. Options or grants of Common Stock for no more than an aggregate of
2,000,000 shares of Common Stock may be granted under this Plan.
2. EFFECTIVE DATE
This Plan shall become effective on October 1, 1996, (the "Effective
Date").
3. ADMINISTRATION
(a) This Plan shall be administered by the Board of Directors or a
committee (the "Committee") of the Board of Directors of the Company (the "Board
of Directors"), who are selected by the Board of Directors. All Committee
members shall serve, and may be removed, at the pleasure of the Board of
Directors.
(b) A majority of the members of the Committee (but not less than two)
shall constitute a quorum, and any action taken by a majority of such members
present at any meeting at which a quorum is present, or acts approved in writing
by all such members, shall be the acts of the Committee.
(c) Subject to the other provisions of this Plan, the Board or the
Committee shall have full authority to decide the date or dates on which shares
of Common Stock or options (the "Options") to acquire shares of Common Stock
will be granted under this Plan (the
<PAGE>
"Date of Grant"), to select the key employees or consultants to whom the Common
Stock or the Options will be granted and to determine the number of shares of
Common Stock to be granted or covered by each Option, and with respect to
Options granted, the price at which such shares of common stock may be purchased
upon the exercise of such option (the "Option Exercise Price") and other terms
and conditions of such purchase. The granting of shares of Common Stock to any
employee or consultant may include terms and provisions, including but not
limited to those which have the effect of a guaranty of the amount of the
proceeds from any subsequent sale of the Common Stock, or which limited the
number of shares of common stock which may be resold in any given period of
time, or which register the shares of common stock on Form S-8 or similar form,
otherwise. In making those determinations, the Board or the Committee shall
solicit the recommendations of the President and Chairman of the Board of the
Company and may take into account the key employee's or consultant's present and
potential contributions to the Company's business and any other factors which
the Committee may deem relevant. Provided, however, that any such
determinations shall be made subject to and in compliance with, the rules and
regulations promulgated by the Securities and Exchange Commission and any
exchange on which the Company's securities are then traded. Subject to the
other provisions of this Plan, the Board or the Committee shall also have full
authority to interpret this Plan and any stock option agreements evidencing
Options granted hereunder, to issue rules for administering this Plan, to
change, alter, amend or rescind such rules, and to make all other determinations
necessary or appropriate for the administration of this Plan. All
determinations, interpretations and constructions made by the Committee pursuant
to this Section 3 shall be final and conclusive. No member of the Board of
Directors or the Committee shall be liable for any action, determination or
omission taken or made in good faith with respect to this Plan or any Option
granted hereunder.
4. ELIGIBILITY
Subject to the provisions of Section 7 below, key employees of the Company
(including officers and directors who are employees) and consultants and other
representatives of the Company shall be eligible to receive Options or grants of
Common Stock under this Plan.
5. OPTION SHARES
(a) The shares subject to Options granted under this Plan shall be shares
of Common Stock. If an Option expires, terminates or is otherwise surrendered,
in whole or in part, the shares allocable to the unexercised portion of such
Option shall again become available for grants of Options hereunder. As
determined from time to time by the Board of Directors, the shares available
under this Plan for grants of Options may consist either in whole
2
<PAGE>
or in part of authorized but unissued shares of Common Stock or shares of Common
Stock which have been reacquired by the Company or a subsidiary following
original issuance.
(b) The aggregate number of shares of Common Stock as to which Options may
be granted hereunder, as provided in Subsection 5(a) above, the number of shares
covered by each outstanding Option and the Option Exercise Price shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or other subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend; PROVIDED, HOWEVER, that any fractional shares resulting from any such
adjustment shall be eliminated.
6. TERMS AND CONDITIONS OF GRANTS
The Board or the Committee may, in its discretion, grant to a key employee
or consultant only Options, only shares of Common Stock, or a combination of
both. Each Option granted pursuant to this Plan shall be evidenced by a stock
option agreement between the Company and the recipient to whom the option is
granted (the "Optionee") in such form or forms as the Committee, from time to
time, shall prescribe, which agreements need not be identical to each other but
shall comply with and be subject to the following terms and conditions:
(a) OPTION EXERCISE PRICE. The Option Exercise Price at which each share
of Common Stock may be purchased pursuant to an Option shall be determined by
the Board or the Committee. Anything contained in this Section 6(a) to the
contrary notwithstanding, in the event that the number of shares of Common Stock
subject to any Option is adjusted pursuant to Section 5(b) above, a
corresponding adjustment shall be made in the Option Exercise Price per share.
(b) DURATION OF OPTIONS. The duration of each Option granted hereunder
shall be determined by the Board or the Committee, except that each Option
granted hereunder shall expire and all rights to purchase shares of Common Stock
pursuant thereto shall cease one day before the tenth anniversary of the Date of
Grant of such Option (in each case, the "Expiration Date").
(c) VESTING OF GRANTS OR OPTIONS. The vesting of each Option or share of
Common Stock granted hereunder shall be determined by the Board or the
Committee. Only such vested portions of Options may be exercised. Only such
vested portions of grants of Common Stock may be disposed of.
(d) MERGER, CONSOLIDATION, ETC. In the event the Company shall, pursuant
to action by its Board of Directors, at any time propose to merge into,
consolidate with, or sell or otherwise transfer all or substantially all of its
assets to, another
3
<PAGE>
corporation and provision is not made pursuant to the terms of such transaction
for (i) the assumption by the surviving, resulting from acquiring corporation of
outstanding Options, (ii) the substitution therefor of new options granting
reasonably similar rights and privileges, or (iii) the payment of cash or other
consideration in respect thereof, the Board or the Committee shall cause written
notice of the proposed transaction to be given to each Optionee not less than 30
days prior to the announced anticipated effective date of the proposed
transaction, and the Board or the Committee shall specify in such notice a date,
which date shall be not less than 10 days prior to the announced anticipated
effective date of the proposed transaction.
(e) EXERCISE OF OPTIONS. A person entitled to exercise an Option, or any
portion thereof, may exercise it (or such vested portion thereof) in whole at
any time, or in part from time to time, by delivering to the Company at its
principal office, directed to the attention of its Chairman, President or such
other duly elected officer as shall be designated in writing by the Board or the
Committee to the Optionee, written notice specifying the number of shares of
Common Stock with respect to which the Option is being exercised, together with
payment in full of the Option Exercise Price for such shares. Such payment
shall be made in cash or by certified check or bank draft to the order of the
Company; PROVIDED, HOWEVER, that the Board or the Committee may, in its sole
discretion, authorize such payment, in whole or in part, in any other form,
including payment by personal check or by the exchange of shares of Common Stock
of the Company previously acquired by the person entitled to exercise the Option
and having a fair market value on the date of exercise equal to the price for
which the shares of Common Stock may be purchase pursuant to the Option, or
pursuant to a cashless exercise of the option.
(f) TRANSFERABILITY. Options shall not be transferable other than by will
or the laws of descent and distribution and an Option may not be exercised by
anyone other than the Optionee; except that if the Optionee dies or becomes
incapacitated, the Option may be exercised by his or her estate, legal
representative or beneficiary, as the case may be, subject to all other terms
and conditions contained in this Plan.
(g) TERMINATION OF EMPLOYMENT OR SERVICES. The following rules shall
apply in the event of an Optionee's termination of employment or services with
or for the Company; if not otherwise specified in an employment, consulting or
similar services agreement with the Company:
(i) In the event of an Optionee's termination of employment with or
services to the Company either (1) by the Company for Cause (as defined in any
relevant agreement to which Optionee is a party) or for fraud, dishonesty,
habitual drunkenness or drug use, or willful disregard of assigned duties by
such
4
<PAGE>
Optionee in the absence of such an agreement, or (2) by the Optionee voluntarily
otherwise than at the end of an employment or service term under a relevant
agreement to which Optionee is a party and without the written consent of the
Company, then the Option shall immediately terminate.
(ii) In the event of the Optionee's termination of employment with or
service to the Company for reason of retirement or under circumstances other
than those specified in subsection (g)(i) immediately above, and for reasons
other than death or disability, the Option shall terminate three months after
the date of such termination of employment or service or on the Expiration Date,
whichever shall first occur; PROVIDED, HOWEVER, that if the Optionee dies within
such 3-month period, the time period set forth in subsection (g) (iii)
immediately below shall apply.
(iii) In the event of the death or disability, of the Optionee while
the Optionee is employed by or providing services to the Company, the Option
shall terminate on the first anniversary of the Optionee's date of termination
of employment or service, or on the Expiration Date, whichever shall first
occur.
(h) NO RIGHTS AS STOCKHOLDER OR TO CONTINUED EMPLOYMENT. No Optionee
shall have any rights as a stockholder of the Company with respect to any shares
covered by an Option prior to the date of exercise of an option or granting of
shares of Common Stock, and neither this Plan nor any Option granted hereunder
shall confer upon an Optionee any right to continuance of employment by the
Company or interferes in any way with the right of the Company to terminate the
employment of such Optionee.
7. ISSUANCE OF SHARES; RESTRICTIONS
(a) Subject to the conditions and restrictions provided in this Section 7,
the Company shall, within 20 business days after the Option has been duly
exercised in whole or in part, deliver to the person who exercised the Option
one or more certificates, registered in the name of such person, for the number
of shares of Common Stock with respect to which the Option has been exercised.
The Company may legend any stock certificate issued upon exercise of an Option
or upon grant of shares of Common Stock to reflect any restrictions provided for
in this Plan.
(b) Unless the shares subject the grant or to Options granted under the
Plan have been registered under the Securities Act of 1933, as amended (the
"Act") (and, in the case of any Optionee or grantee who may be deemed an
"affiliate" of the Company as such term is defined in Rule 405 under the Act,
such shares have been registered under the Act for resale by the Optionee or
grantee), or the Company has determined that an exemption from registration
under the Act is available, the Company may require prior to and as a condition
of the issuance of any shares of Common Stock, that the
5
<PAGE>
person exercising an Option or receiving a grant of Common Stock hereunder (i)
sign such agreements with respect thereto as the Company may require, and (ii)
furnish the Company with a written representation in a form prescribed by the
Board or Committee to the effect that such person is acquiring such shares
solely with a view to investment for his or her own account and not with a view
to the resale or distribution of all or any part thereof, and that such person
will not dispose of any of such shares otherwise than in accordance with the
provisions of Rule 144 under the Act unless and until either the distribution of
such shares is registered under the Act or the Company is satisfied that an
exemption from such registration is available.
(c) Anything contained herein to the contrary notwithstanding, the
Company shall not be obliged to sell or issue any shares of Common Stock
pursuant to the grant of shares of Common Stock or the exercise of an Option
granted hereunder unless and until the Company is satisfied that such sale or
issuance complies with all applicable provisions of the Act and all other laws
or regulations by which the Company is bound or to which the Company or such
shares are subject.
(d) Upon the grant and issuance of shares of Common Stock, the
Company may require the recipient thereof to execute a document acknowledging,
INTER ALIA, the receipt of the shares of Common Stock, the Company's obligation
to register the shares pursuant to Form S-8 or similar form, the recipient's
agreement to sell no more than an agreed upon number of shares during any given
period of time, and containing such other provisions as the Company may require.
8. SUBSTITUTE OPTIONS
Anything contained herein to the contrary notwithstanding, Options may, at
the discretion of the Board of Directors, be granted under this Plan in
substitution for options to purchase shares of capital stock of another
corporation which is merged into, consolidated with, or all or a substantial
portion of the property or stock of which is acquired by, the Company or a
subsidiary. The terms, provisions and benefits to Optionees of the Options of
the other corporation on the date of substitution, except that such substitute
Options shall provide for the purchase of shares of Common Stock of the Company
instead of shares of such other corporation.
9. TERM OF THE PLAN
Unless the plan has been sooner terminated pursuant to Section 10 below,
this Plan shall terminate on, and no Options or shares of Common Stock shall be
granted after, the tenth anniversary of the Effective Date. The provisions of
this Plan, however, shall continue thereafter to govern all Options theretofore
granted,
6
<PAGE>
until the exercise, expiration or cancellation of such Options.
10. AMENDMENT AND TERMINATION OF PLAN
The Board of Directors at any time may terminate this plan or amend it from
time to time in such respects as it deems desirable.
7
<PAGE>
[LETTERHEAD]
EXHIBIT 5.1
October 7, 1996
Compost America Holding Company, Inc.
320 Grand Avenue
Englewood, New Jersey 07631-4355
Gentlemen:
I have reviewed a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission relating to
705,000 shares of common stock, no par value (the "Shares") of Compost America
Holding Company, Inc. (the "Company") to be issued pursuant to the Company's
Employee and Consultant Stock and Stock Option Plan described in the
Registration Statement (the "Agreement").
I have examined the Certificate of Incorporation, as amended, and the By-Laws of
the Company, the Registration Statement and originals, or copies certified to my
satisfaction, of such records of meetings, written actions in lieu of meetings,
or resolutions adopted at meetings, of the directors of the Company, documents
and such other documents and instruments as in my judgment are necessary or
appropriate to enable me to render the opinions expressed below.
In my examination of the foregoing documents, I have assumed the genuineness of
all signatures and the authenticity of all documents submitted to me as
originals, the conformity to original documents of all documents submitted to me
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon and subject to the foregoing, I am of the opinion that the Shares
have been duly and validly authorized for issuance under the Agreement and that
the Shares, when issued in accordance with the terms of the Agreement, will be
legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ Mark Gasarch
Mark Gasarch
<PAGE>
[LETTERHEAD]
EXHIBIT 23.2
The Board of Directors
Compost America Holding Company, Inc.
320 Grand Avenue
Englewood, New Jersey 07631
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ Zeller Weiss & Kahn
ZELLER WEISS & KAHN
Mountainside, New Jersey
October 7, 1996
