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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
GEOWASTE INCORPORATED
---------------------
(Exact name of Registrant as specified in its Charter)
<TABLE>
<S> <C>
Delaware 36-2751684
- -------------------------------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
24 Cathedral Place, Suite 208
St. Augustine, Florida 32084
(Address of Principal Executive Offices)
GEOWASTE INCORPORATED
1992 STOCK OPTION PLAN
---------------------------------
GEOWASTE NON-QUALIFIED STOCK OPTION AGREEMENT WITH AMY C. MACF. BURBOTT
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GEOWASTE NON-QUALIFIED STOCK OPTION AGREEMENT WITH HARVE FERRILL
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GEOWASTE NON-QUALIFIED STOCK OPTION AGREEMENT WITH RAYMOND F. CHASE
-------------------------------------------------------------------
(Full title of the plan)
Kevin R. Kohn
President
GeoWaste Incorporated
24 Cathedral Place, Suite 208
St. Augustine, Florida 32084
(904) 824-0201
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(Name, address, telephone number of agent for service)
COPIES TO:
G. Alan Howard, Esq.
Mahoney Adams & Criser, P.A.
50 North Laura Street, 34th Floor
Jacksonville, Florida 32202
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to Price Offering Registration
To be Registered Be Registered (1) Per Share Price Fee (9)
------------- ----------------- --------- ----- -------
<S> <C> <C> <C> <C>
Common Stock 785,000 (2) $0.50 $392,500 $135.34
$0.10 par value per
share
Common Stock $0.10 par 61,500 (3) $1.19 $ 73,185 $ 25.24
value per share
Common Stock 200,000 (4) $2.00 $400,000 $137.93
$0.10 par value
per share
Common Stock 100,000 (5) $2.75 $275,000 $ 94.83
$0.10 par value
per share
Common Stock 100,000 (6) $3.50 $350,000 $120.69
$0.10 par value
per share
Common Stock $0.10 par 131,500 (7) $4.50 (8) $591,750 $204.50
value per share
</TABLE>
(1) The aggregate number of shares of Common Stock (as hereinafter
defined) authorized for issuance pursuant to grants or the exercise of
options and other rights under the GeoWaste Incorporated 1992 Stock
Option Plan (the "Plan"), the GeoWaste Non-Qualified Stock Option
Agreement effective as of July 1, 1991 between GeoWaste Incorporated
and Raymond F. Chase (the "Chase Option Agreement"), the GeoWaste
Non-Qualified Stock Option Agreement effective as of July 1, 1991
between GeoWaste Incorporated and Amy C. MacF. Burbott (the "Burbott
Option Agreement") and the GeoWaste Non-Qualified Stock Option
Agreement effective as of July 1, 1991 between GeoWaste Incorporated
and Harve Ferrill (the "Ferrill Option Agreement," together with the
Chase Option Agreement and the Burbott Option Agreement, the "Option
Agreements") is 1,378,000. Shares registered hereunder include: (a)
803,000 shares of Common Stock issuable upon the grant and exercise of
options under the Plan; (b) 75,000 shares of Common Stock issuable
upon the exercise of options under the Chase
ii
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Option Agreement; (c) 400,000 shares of Common Stock issuable upon the
exercise of options under the Burbott Option Agreement; and (d)
100,000 shares of Common Stock issuable upon the exercise of options
under the Ferrill Option Agreement.
(2) Represents shares of Common Stock which may be purchased at an
exercise price of $0.50 per share upon the exercise of certain options
granted under the Plan, the Chase Option Agreement, the Burbott Option
Agreement and/or the Ferrill Option Agreement. Shares registered
hereunder include: (a) 210,000 shares of Common Stock issuable upon
the vesting and exercise of options granted under the Plan; (b) 75,000
shares of Common Stock issuable upon the exercise of options granted
under the Chase Option Agreement; (c) 400,000 shares of Common Stock
issuable upon the exercise of options granted under the Burbott Option
Agreement; and (d) 100,000 shares of Common Stock issuable upon the
vesting and exercise of options granted under the Ferrill Option
Agreement.
(3) Represents shares of Common Stock which may be purchased at an
exercise price of $1.19 per share upon the vesting and exercise of
certain options granted under the Plan.
(4) Represents shares of Common Stock which may be purchased at an
exercise price of $2.00 per share upon the vesting and exercise of
certain options granted under the Plan, 100,000 of which have vested
and 100,000 of which will vest on April 23, 1997.
(5) Represents shares of Common Stock which may be purchased at an
exercise price of $2.75 per share upon the vesting and exercise of
certain options granted under the Plan that will vest on April 23,
1998.
(6) Represents shares of Common Stock which may be purchased at an
exercise price of $3.50 per share upon the vesting and exercise of
certain options granted under the Plan that will vest on April 23,
1999.
(7) Represents shares of Common Stock authorized for grants under the Plan
that have not been allocated to an individual Plan participant.
(8) Estimated solely for the purpose of determining the registration fee.
The Common Stock of GeoWaste Incorporated (the "Company"), par value
$.10 per share (the "Common Stock"), is listed on the Nasdaq National
Market ("Nasdaq"). The fee is based upon the average of the high and
low prices of the Registrant's Common Stock as quoted on Nasdaq on
June 11, 1996.
(9) Calculated in accordance with Rule 457 of the Securities Act of 1933,
as amended.
This Registration Statement also includes such indeterminate number of
additional shares of Common Stock as may be issuable as a result of stock
splits, stock dividends or similar transactions, as described in the Plan and
the Option Agreements.
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EXPLANATORY NOTE: This Registration Statement contains two parts. The first
part contains a prospectus pursuant to Form S-3 (in accordance with Section C
of the General Instructions to Form S-8) which covers (a) reoffers and resales
of "control shares" by certain persons who may be deemed affiliates of the
registrant and (b) reoffers and resales of "restricted shares" issued under an
employee benefit plan or employment contracts prior to the filing of this
Registration Statement. Pursuant to the Note to Part I of Form S-8, the Plan
information and the information regarding the Option Agreements specified by
Part I is not being filed with the Securities and Exchange Commission. The
second part contains Information Required in the Registration Statement
pursuant to Part II of Form S-8.
iv
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REOFFER PROSPECTUS
GeoWaste Incorporated
1,378,000 Shares of Common Stock
(Par Value $.10 Per Share)
This Prospectus may be used by certain persons (the "Covered
Stockholders") to sell shares of common stock, $.10 par value, (the "Common
Stock"), of GeoWaste Incorporated, a Delaware corporation (the "Corporation")
obtained by such persons in connection with the exercise of options to purchase
such shares pursuant to an employee benefit plan or an employment contract, as
described herein. For the purposes of this Prospectus, "Covered Stockholders"
shall mean persons who (i) may be deemed to be affiliates of the Corporation
and who acquired shares of Common Stock pursuant to the exercise of a stock
option pursuant to either (a) a GeoWaste Incorporated Non-Qualified Stock
Option Agreement(1) (a "Stock Option Agreement") or (b) the 1992 GeoWaste Stock
Option Plan (the "Plan") or (ii) exercised an option to purchase Common Stock
pursuant to a Stock Option Agreement or the Plan and were issued shares by the
Corporation in accordance therewith prior to the filing by the Corporation of a
Registration Statement with respect thereto, regardless of whether such persons
are deemed to be "affiliates" of the Corporation. All proceeds from any sales
of such shares of Common Stock will inure to the benefit of the Covered
Stockholders. The Corporation will receive none of the proceeds from the sale
of shares which may be offered hereby but may receive funds upon the exercise
of the options pursuant to which the Covered Stockholders will acquire certain
of the shares covered by this Prospectus, which funds, if any, will be used for
working capital. All expenses of registration incurred in connection herewith
are being borne by the Corporation, but all selling and other expenses incurred
by individual Covered Stockholders will be borne by such Covered Stockholders.
The Covered Stockholders have not advised the Corporation of any
specific plans for the distribution of the shares of Common Stock covered by
this Prospectus, but, if and when shares are sold, it is anticipated that the
shares will be sold from time to time primarily in transactions on the Nasdaq
National Market ("Nasdaq"). See "The Plan of Distribution."
________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
________
No person is authorized to give any information or to make any
representation not contained in this Prospectus and, if given or made, such
information or representation should not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to purchase, any of the securities offered by this
Prospectus in any jurisdiction to or from any person to whom or from whom it is
unlawful to make such offer. Neither the delivery of this Prospectus nor any
distribution of securities made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Corporation since the date hereof or that information in this Prospectus or in
the documents incorporated herein b reference is correct as of any time
subsequent to the date hereof or the dates hereof.
The date of this Prospectus is June 12, 1996.
---------------------
(1) The Stock Option Agreements consist of (i) the GeoWaste
Incorporated Non-Qualified Stock Option Agreement effective as of
July 1, 1991 between Amy C. MacF. Burbott and the Corporation
pertaining to an option to purchase up to 400,000 shares of
Common Stock (the "Burbott Option Agreement"), (ii) the GeoWaste
Incorporated Non-Qualified Stock Option Agreement effective as of
July 1, 1991 between Raymond F. Chase and the Corporation
pertaining to the option to purchase up to 75,000 shares of
Common Stock (the "Chase Option Agreement") and (iii) the
GeoWaste Incorporated Non-Qualified Stock Option Agreement
effective as of July 1, 1991 between Harve A. Ferrill and the
Corporation pertaining to the option to purchase up to 100,000
shares of Common Stock (the "Ferrill Option Agreement").
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TABLE OF CONTENTS
Page
----
Available Information
Incorporation of Certain Documents by Reference
The Corporation
Covered Stockholders
Plan of Distribution
Regulatory Matters
Description of Common Stock
Description or Capital Stock
Legal Opinion
Experts
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
Commission's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the public reference facilities in the
Commission's regional offices located at: Northwestern CitiCorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661; and Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies of such materials can be
obtained at prescribed rates by writing to the Securities and Exchange
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549. Certain of the Corporation's securities are traded on the
over-the-counter market, and reports, proxy statements and other information
concerning the Corporation may be inspected at the offices of Nasdaq, 1735 K
Street, N.W., Washington D.C. 20006.
The Corporation has filed with the Commission a Registration Statement
on Form S-8 (together with any amendments and exhibits thereto, the
"Registration Statement") under the Securities Act with respect to the Common
Stock. 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. Such additional information may be
obtained from the public reference room of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549. Statements contained in this Prospectus or in any
document incorporated by reference in this Prospectus as to the contents of any
contract or other document referred to herein or therein are not necessarily
complete, and in each instance reference is made to the copy of such contract
or other document filed as an exhibit to the Registration Statement or such
other document, each such statement being qualified in all respects by such
reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission by the Corporation
are incorporated, as of their respective filing dates, by reference in this
Prospectus.
(a) the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995;
(b) the Corporation's Quarterly Report on Form 10-Q for the three
months ended March 31, 1996; and
(c) the Corporation's 8-K filed on April 3, 1996.
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All documents filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and prior
to the termination of the offering of the Common Stock offered hereby shall be
deemed to be incorporated herein by reference and to be a part hereof from the
filing date of such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated herein by reference shall be deemed
to be modified or superseded for purposes hereof to the extent that a statement
contained herein or in any other subsequently filed document which also is, or
is deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part hereof, except as so modified or superseded.
The Corporation will furnish without charge to each person, including
any beneficial owner to whom this Prospectus is delivered, on the request of
such person, a copy of any or all of the documents described above under
"Incorporation of Certain Information by Reference" (other than exhibits to
such documents). Requests should be directed to:
GeoWaste Incorporated
24 Cathedral Place, Suite 208
St. Augustine, Florida 32084
Attention: Kevin R. Kohn
Telephone: (904) 824-0201
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' THE CORPORATION
The Corporation's principal executive office is located at 24
Cathedral Place, Suite 208, St. Augustine, Florida 32084 and its telephone
number is (904) 824-0201.
COVERED STOCKHOLDERS
The following table sets forth: (i) the names of the Covered
Stockholders and (ii) the positions, offices or other material relationships
which they have had with the Corporation since May 1993:
<TABLE>
<CAPTION>
COVERED STOCKHOLDERS: CURRENT POSITIONS WITH THE CORPORATION FORMER POSITION WITH THE CORPORATION
--------------------- -------------------------------------- ------------------------------------
<S> <C> <C>
Amy C. MacF. Burbott Chairman of the Board and President and Chief Executive Officer
Chief Executive Officer
Kevin R. Kohn President and Director Vice President\Operations
Raymond F. Chase Secretary, Chief Financial Officer, Controller
Treasurer and Vice President
Harve A. Ferrill Director -----
Mark Morrisey(*) Employee Employee
Donna Davis-Harrell(*) Employee Employee
Del Dannels(*) Employee Employee
Merrill Baker III(*) Employee Employee
Kerry Koenenmann(*) Employee Employee
Sherry Ray(*) Employee Employee
</TABLE>
(*) Since these persons are not considered to be "affiliates" of
the Corporation, they are only considered to be Covered
Shareholders under this Prospectus if, and solely to the
extent that, they exercised options to purchase shares of
Common Stock of the Corporation pursuant to the Plan prior to
the filing of a registration statement with respect thereto.
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The table on the following page sets forth: (i) the names of the
Covered Stockholders who may sell Common Stock pursuant to this Prospectus(2),
(ii) the number of shares of Common Stock owned (or subject to option) by each
Covered Stockholder as of June 12, 1996, (iii) the number of shares of Common
Stock which may be offered and are being registered for the account of each
Covered Stockholder by this Prospectus(3) and (iv) the amount and (if one per
cent or more) the percentage of the class to be owned by each Covered
Stockholder if such Covered Stockholder were to sell all of the shares of
Common Stock subject to this Prospectus.
---------------------------
(2) To the extent such persons are considered to be
"affiliates" of the Corporation, or if, and to the extent that,
such persons who are not deemed to be affiliates of the
Corporation previously exercised options to purchase shares of
Common Stock of the Corporation pursuant to the Plan prior to the
filing of a registration statement with respect thereto.
(3) With respect to those options held by non-affiliates, the
number of shares to be registered pursuant to this Reoffer
Prospectus assumes exercise of all such options issued pursuant to
the Plan prior to the filing of a Registration Statement with
respect thereto. In the event none of such options are exercised
prior to such filing, the shares of Common Stock covered by such
options shall be deemed to be covered by the GeoWaste Incorporated
1992 Stock Option Plan Prospectus providing information pursuant
to the Registration Statement on Form S-8 filed with the Securities
and Exchange Commission on June 13, 1996.
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<TABLE>
<CAPTION>
PERCENT OF TOTAL
NUMBER OF SHARES OWNED OUTSTANDING SHARES
(OR SUBJECT TO OPTION) OWNED IF ALL SHARES OWNED IF ALL SHARES
PRIOR TO THIS NUMBER OF SHARES REGISTERED HEREUNDER REGISTERED HEREUNDER
NAME REGISTRATION TO BE REGISTERED WERE SOLD WERE SOLD (IF 1% OR MORE)
---- ------------ ---------------- -------------------- -------------------------
<S> <C> <C> <C> <C>
Amy C. MacF. Burbott 800,000(4) 800,000 0 (*)
Kevin R. Kohn 145,621(5) 145,000 621 (*)
Raymond F. Chase 124,570(6) 120,000 4,570 (*)
Harve Ferrill 1,046,856(7) 100,000 260,080 (*)
Mark Morrisey 25,000 25,000(8) 0 (*)
Donna Davis 25,000 25,000(9) 0 (*)
Del Daniels 25,000 25,000(10) 0 (*)
Merrill Baker III 2,500 2,500(11) 0 (*)
Kerry Koenenmann 2,000 2,000(12) 0 (*)
Sherry Ray 2,000 2,000(13) 0 (*)
</TABLE>
--------------------
(4) Represents options to purchase up to 400,000 shares of
Common Stock issued in connection with the Burbott Option
Agreement, all of which are currently exercisable, and options to
purchase up to 400,000 shares of Common Stock issued in
connection with the Plan 100,000 of which are currently exercisable.
(5) Includes options to purchase up to 145,000 shares of
Common Stock issued in connection with the Plan. Options to
purchase 100,350 of such shares are currently exercisable.
(6) Includes options to purchase up to 75,000 shares of Common
Stock issued in connection with the Chase Option Agreement, all of
which are currently exercisable, and options to purchase up to 45,000
shares of Common Stock issued in connection with the Plan, 25,350 of
which are currently exercisable.
(7) Includes options to purchase up to 100,000 shares of
Common Stock issued in connection with the Ferrill Option
Agreement, all of which are currently exercisable. Also includes
26,080 shares of Common Stock beneficially owned by Mr. Ferrill,
18,080 of which he has sole voting and investment power and 8,000 of
which he shares voting and investment power. Also includes
1,070,776 shares of Common Stock owned by Advance Ross Corporation
(where Mr. Ferrill serves as Chief Executive Officer), of which
Mr. Ferrill disclaims any beneficial interest.
(8) Represents stock options to acquire shares of Common Stock
issued by the Corporation in connection with the Plan, 16,650 of
which are currently exercisable.
(9) Represents options to acquire shares of Common Stock
issued by the Corporation in connection with the Plan, 16,650 of
which are currently exercisable.
(10) Represents options to purchase shares of Common Stock
issued by the Corporation in connection with the Plan, 16,650 of
which are currently exercisable.
(11) Represents options to purchase shares of Common Stock
issued by the Corporation in connection with the Plan, 825 of
which are currently exercisable.
(12) Represents options to purchase shares of Common Stock
issued by the Corporation in connection with the Plan, 660 of
which are currently exercisable.
(13) Represents options to purchase shares of Common Stock
issued by the Corporation in connection with the Plan, 660 of
which are currently exercisable.
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In addition, certain unnamed non-affiliates, each of whom may sell up to
the lesser of 1000 shares or 1% of the shares issuable under the Plan may use
the reoffer prospectus for reoffers and resales.
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be sold
by the Covered Stockholders for their own account, and they will receive all
proceeds from any such sales. The Corporation will receive none of the
proceeds from the sale of shares which may be offered hereby but may receive
funds upon the exercise of the options pursuant to which the Covered
Stockholders will acquire the shares covered by this Prospectus, which funds,
if any, will be used for working capital. The Covered Stockholders have not
advised the Corporation of any specific plans for the distribution of the
shares of Common Stock covered by this Prospectus, but, if and when shares are
sold, it is anticipated that the shares will be sold from time to time
primarily in transactions on the Nasdaq exchange at the market price then
prevailing, although sales may also be made in negotiated transactions or
otherwise. If shares of Common Stock are sold through brokers, the Covered
Stockholders may pay customary brokerage commissions and charges. The Covered
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 Covered Stockholders and/or
the purchasers of shares for whom such broker-dealers may act as agent or to
whom they may sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). The Covered
Stockholders and any broker-dealers that act in connection with the sale of the
shares hereunder might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933 (the "Securities Act"), and any
commissions received by them and any profit on the resale of shares as
principal might be deemed to be underwriting discounts and commissions under
the Securities Act. Shares of Common Stock covered by this Prospectus also may
be sold pursuant to Rule 144 under the Securities Act rather than pursuant to
this Prospectus. The Covered Stockholders have been advised that they are
subject to the applicable provisions of the Securities Exchange Act of 1934,
including without limitation Rules 10b-5, 10b-6 and 10b-7 thereunder.
The shares of Common Stock to which this Prospectus relates may be
authorized for listing on the Nasdaq exchange.
REGULATORY MATTERS
General
The Corporation and the waste services industry in general are subject to
extensive, expansive and evolving regulation by federal, state and local
authorities. In particular, the regulatory process requires firms in the
industry to obtain and retain numerous governmental permits to conduct various
aspects of their operations, any of which may be subject to revocation,
modification or denial. The continually shifting policies and attitudes of the
regulatory agencies relating to the industry may impact the Corporation's
ability to obtain applicable permits from governmental authorities on a timely
basis and to retain such permits. The Corporation is not in a position to
assess the extent of any such impact, but it could be significant.
State and local governments have also from time to time proposed or
adopted other types of laws, regulations or initiatives with respect to the
environmental services industry. Included among these are laws, regulations
and initiatives to ban or restrict the interstate or inter-county shipment of
wastes, impose higher taxes on out-of-state waste shipments than in-state
shipments and regulate disposal facilities as public utilities.
The Corporation makes a continuing effort to anticipate regulatory,
political and legal developments that might affect operations, but cannot
predict the extent to which any legislation or regulation that may be enacted
or enforced in the future may affect its operations.
Operating permits are generally required at the state and local level for
landfills and collection vehicles. Operating permits need to be renewed
periodically and may be subject to revocation, modification, denial or
non-renewal for various reasons, including failure of the Corporation to
satisfy regulatory concerns. In the solid waste collection phase, regulation
takes such forms as permitting of transfer stations, licensing of collection
vehicles, truck safety requirements, vehicular weight limitations and, in
certain localities, limitations on rates, area and time and frequency of
collection. In the solid waste disposal phase, regulation covers various
matters, including methane gas emission, liquid runoff and rodent, pest, litter
and traffic control. Zoning and land use requirements and limitations are
encountered in the solid waste collection and disposal phases of the
Corporation's business. In addition, the Corporation's operations may be
subject to water pollution laws and regulations; air and noise pollution laws
and regulations; and safety standards under the Occupational Safety and Health
Act ("OSHA"). Governmental authorities have the power to enforce
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<PAGE> 12
compliance with these various laws and regulations and violators are subject to
injunctions, fines and revocation of permits. Private individuals may also
have the right to sue to enforce compliance.
Regulatory or technological developments relating to the environment may
require the Corporation (as well as others in the solid waste management
business) to modify, supplement or replace equipment and facilities at costs
which may be substantial. Because the Corporation is engaged in a business
intrinsically connected with the protection of the environment and the
potential discharge of materials into the environment, a material portion of
the Corporation's capital expenditures are, directly or indirectly, related to
such items. The Corporation does not expect such expenditures, which are
incurred in the ordinary course of business, to have a materially adverse
impact on its earnings or competitive position in the foreseeable future
because the Corporation's business is based upon compliance with environmental
laws and regulations and its services are priced accordingly.
Although the Corporation intends to conduct its operations in compliance
with applicable laws and regulations, the Corporation believes that heightened
political and citizen sensitivity causes companies in the solid waste
management industry to be faced, in the normal course of operating their
businesses, with the possibility of expending funds for fines, penalties and
expenses incurred as a result of changes to environmental compliance
regulations. While the Corporation has expended no such funds to date, the
possibility remains that technological, regulatory or enforcement developments,
the results of environmental studies or other factors could materially alter
this expectation at any time. In any event, such matters could have a material
impact on earnings for a particular fiscal quarter.
Resource Conservation and Recovery Act ("RCRA") RCRA regulates the
generation, treatment, storage, handling, transportation and disposal of
hazardous and solid waste and requires states to develop programs to insure the
safe disposal of solid waste in sanitary landfills. RCRA divides solid waste
into two groups, hazardous and nonhazardous. Wastes are generally classified
as hazardous wastes if they: (i) either (a) are specifically included on a list
of hazardous wastes or (b) exhibit certain characteristics; and (ii) are not
specifically designated as nonhazardous. Wastes classified as hazardous under
RCRA are subject to much stricter regulation than wastes classified as
nonhazardous. Among the wastes that are specifically designated as
nonhazardous waste are household waste and various types of special waste.
These wastes, which will be accepted at the Corporation's landfills, may
contain incidental hazardous substances.
On October 9, 1991, the EPA promulgated new regulations pursuant to
Subtitle D of RCRA. These new regulations include location standards, facility
design standards, operating criteria, closure and post-closure requirements,
financial assurance standards and groundwater monitoring requirements as well
as corrective action standards, all of which have not previously been uniformly
applied at landfills within the fifty states. In addition, the new regulations
require new landfills which received municipal solid waste for disposal after
April 9, 1994 to have one or more liners (typically high-density polyethylene
liners) to keep leachate out of groundwater and have extensive systems to
collect leachate for handling and treatment. In addition, by October 9, 1996
groundwater wells must also be installed at virtually all landfills to monitor
groundwater quality and the leachate collection system operation. The
regulations also require (where threshold test levels are met) that methane gas
generated at landfills be controlled in a manner that will protect human health
and the environment. Because some states have already adopted regulations at
least as stringent as the new federal regulations, the new Subtitle D
regulations will cause greater changes in the landfill regulation of certain
states than of others.
The Corporation's Pecan Row Landfill was designed and constructed in
accordance with the requirements of Subtitle D.
The Federal Water Pollution Control Act ("Clean Water Act") The Clean
Water Act established rules regulating the discharge of pollutants from a
variety of sources, including solid waste disposal sites, into waters of the
United States. For any discharge, the Clean Water Act would require the
Corporation to apply for and obtain a discharge permit, conduct sampling and
monitoring and, under certain circumstances, reduce the quantity of pollutants
in those discharges. Also, virtually all landfills are required to comply with
the new federal storm water regulations, which are designed to prevent possibly
contaminated storm water from flowing into surface waters.
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA") CERCLA addresses problems created by the release of any hazardous
substance into the environment. CERCLA's primary mechanism for remedying such
problems is to impose strict joint and several liability for cleanup of
facilities among all past and current owners and operators of the site as well
as the generators and the transporters who arranged for disposal and
transportation of hazardous substances. The costs of CERCLA cleanup can be
very substantial. Liability under CERCLA does not depend upon the existence or
disposal of "hazardous waste" but can also be founded upon the existence of
even very small amounts of the more than 1,000 "hazardous substances" listed by
the EPA.
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The Clean Air Act, as Amended ("Clean Air Act") The Clean Air Act
provides for federal, state and local regulation of the emission of air
pollutants and is applicable to landfills. The EPA has proposed new source
performance standards regulating overall air emissions from solid waste
landfills. The EPA may also issue regulations controlling the emissions of
particular air pollutants from solid waste landfills. Moreover, landfills
located in areas with air pollution problems may be subject to even more
extensive air pollution controls.
State and Local Regulations The States of Georgia and Florida, as well
as those states in which the Corporation may operate in the future, have laws
and regulations governing the generation, handling, transfer, transportation
and disposal of solid waste, water and air pollution and, in most cases, the
design, operation, maintenance, closure and post-closure maintenance of
landfills.
Georgia and Florida, like most other states, have tightened the
regulatory requirements on the permitting of new and expanded solid waste
facilities and on the continued operation of existing facilities. State
regulations are expected to become both more stringent and more uniform
nationwide as the dates for the implementation of additional requirements of
Subtitle D occur. The increased stringency of state regulations may be
expected to benefit the Corporation, as older landfills are forced to close,
thereby further reducing the available landfill capacity. However, the
increasing state and local scrutiny of landfills also makes it difficult for
the Corporation to comply with the continually evolving and expansive
regulation applicable to the disposal of solid waste.
Increasing public opposition to the siting and operation of landfills has
led many states, including Georgia and Florida, to enact legislation at the
state and/or local level which attempts to prohibit or greatly restrict the
interstate and intrastate movement of solid waste. In addition, after two
recent decisions by the Supreme Court which recognized that the Commerce Clause
of the United States Constitution imposes substantial limits upon the ability
of state and local governments to restrict the movement of solid waste across
state lines, legislation has been introduced in the United States Congress
which attempts to restrict interstate waste transportation. For the
foreseeable future, the Corporation, like all others in the solid waste
industry, faces uncertainty regarding the circumstances under which it will be
able to accept out-of-state waste for disposal at its facility. A significant
portion of the solid waste volume disposed of at the Corporation's Pecan Row
Landfill is generated from outside the State of Georgia.
DESCRIPTION OF CAPITAL STOCK
The following summary does not purport to be complete and is subject to
in all respects, and qualified in its entirety by, the applicable provisions of
the Delaware General Corporation Law including the Restated Certificate of
Incorporation, as amended, and the Bylaws of the Corporation (the "Bylaws").
General
The authorized capital stock of the Corporation consists of 50,000,000
shares of Common Stock, par value $.10 per share, and 5,000,000 shares of
Preferred Stock, par value $.01 per share (the Preferred Stock ). As of April
15, 1996, there were issued and outstanding 18,896,551 shares of Common Stock
and no shares of Preferred Stock were issued or outstanding. The Common Stock
will, when issued, be fully paid and nonassessable.
Since the Corporation owns a controlling interest in, and supervises the
management of, several subsidiaries, the right of the Corporation, and hence
the right of creditors and shareholders of the Corporation, to participate in
any distribution of assets of any subsidiary upon its liquidation or
reorganization or otherwise is necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that claims of the
Corporation itself as a creditor of the subsidiary may be recognized. The
principal source of the Corporation's revenues is dividends from its
subsidiaries.
Common Stock
The holders of Common Stock are entitled to receive dividends from funds
legally available therefor when, as, and if declared by the Corporation's Board
of Directors out of assets of the Corporation legally available for payment.
Each dividend will be payable to holders of record as they appear on the stock
register of the corporation as of the record dates fixed by the Board of
Directors of the Corporation. The principal source of funds for payment of
dividends by the Corporation is dividends paid by the Corporation's
subsidiaries.
In the event of any voluntary or involuntary dissolution, liquidation or
winding up of the Corporation, the holders of the Common Stock are entitled
upon liquidation to receive pro rata the net assets of the Corporation after
satisfaction in full of the prior
-9-
<PAGE> 14
rights of creditors of the Corporation and the holders of any Preferred Stock
designating a liquidation preference. Neither the sale of all or substantially
all the property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other corporation shall be
deemed to be a dissolution, liquidation or winding up, voluntary or
involuntary, of the Corporation.
The holders of Common Stock are entitled to one vote for each share held
on all matters as to which shareholders are entitled to vote. The holders of
Common Stock do not have cumulative voting rights, any preferential,
subscriptive or preemptive rights with respect to any securities of the
Corporation, or any conversion rights. The outstanding shares of Common Stock
are fully paid and nonassessable.
Chemical Mellon Securities Transfer Corp. is the transfer agent and
registrar for the Common Stock.
Preferred Stock
Under the Restated Certificate of Incorporation, as amended, the
Corporation's Board of Directors is authorized without further shareholder
action to provide for the issuance of up to 5,000,000 shares of Preferred Stock
in one or more series, with such voting powers, designations, preferences,
rights, qualifications, limitations and restrictions as shall be set forth in
resolutions providing for the issue thereof adopted by the Board of Directors.
As of the date of this Prospectus, the Corporation has not issued any series
of Preferred Stock.
Any issuance of shares of Preferred Stock could be used to dilute the
stock ownership of persons seeking to gain control of GeoWaste and could
otherwise have the effect of delaying, deferring or preventing a change in
control of GeoWaste.
LEGAL OPINION
The validity of the Common Stock will be passed upon for the Corporation
by Mahoney Adams & Criser, P.A. (a professional corporation), Jacksonville,
Florida, counsel for the Corporation.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Annual Report on Form 10-K of the
Corporation for the year ended December 31, 1995, have been so incorporated in
reliance on the report of Coopers & Lybrand L.L.P., independent accountants,
given on the authority of such firm as experts in issuing said report.
-10-
<PAGE> 15
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2. Plan Information; Registrant Information
and Employee Plan Annual Information
The document(s) containing the information specified in the
instructions to Part I of Form S-8 will be sent or given to employees of the
Company as specified by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference into this Registration
Statement the following documents filed by the Company with the Securities and
Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(c) The Company's Form 8-K filed April 3, 1996;
(d) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by
the registrant document referred to in (a) above; and
(e) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission under the Exchange Act.
All documents subsequently filed by the Company 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
II-1
<PAGE> 16
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any other
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Restated Certificate of Incorporation, as amended, and Bylaws of the
Corporation require the indemnification of directors and officers to the
fullest extent permitted by law.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
empowers a corporation to indemnify any person who was or is a party to any
proceeding (other than an action by, or in the right of, the corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against liability incurred in connection
with such proceeding (including any appeal thereof) if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL empowers a corporation to indemnify any person
who was or is a party to any proceeding by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that such person acted
in any of the capacities set forth in the preceding paragraph, against expenses
and amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expenses of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement
of such proceeding, including appeals, provided that the person acted under the
standards set forth in the preceding paragraph. However, no indemnification
should be made for any claim, issue or matter as to which such person is
adjudged to be liable unless, and only to the extent that, the court in which
such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability
but in view of all the
II-2
<PAGE> 17
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court deems proper.
Section 145(c) of the DGCL provides that to the extent a director or
officer of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in Subsections (a) or (b) of Section 145
of the DGCL or in the defense of any claim, issue or matter therein, he shall
be indemnified against expenses actually and reasonably incurred by him in
connection therewith.
Section 145(d) of the DGCL provides that any indemnification under
Subsections (a), or (b) of Section 145 of the DGCL, unless determined by a
court, shall be made by the corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in Subsections (a) or (b) of Section 145 of the DGCL. Such determination
shall be made:
(a) by a majority vote of the directors who are not parties to
the action, suit or proceeding, even though less than a quorum; or
(b) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion; or
(c) by the stockholders.
Under subsection (e) of Section 145 of the DGCL, expenses incurred by a
director or officer in defending a civil or criminal proceeding may be paid by
the corporation in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that such director or officer is not entitled to
indemnification under Section 145 of the DGCL.
Subsection (f) of Section 145 of the DGCL states that indemnification and
advancement of expenses provided under Section 145 of the DGCL are not
exclusive and empowers the corporation to make any other or further
indemnification or advancement of expenses under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, for actions in an
official capacity and in other capacities while holding an office.
Subsection (g) of Section 145 of the DGCL permits a corporation to
purchase and maintain insurance for a director or officer against any liability
incurred in his official capacity or arising out of his status as such
regardless of the corporation's power to indemnify him against such liability
under Section 145.
As allowed by Section 145(g) of the DGCL the Corporation maintains
liability insurance covering directors and officers.
II-3
<PAGE> 18
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
This Form S-8 Registration Statement includes the following
exhibits:
Exhibit Number
- --------------
4(a) Certificate of Incorporation of GeoWaste Incorporated,
as amended and restated.
4(b) Bylaws of GeoWaste Incorporated
4(c) Amendment to Amended and Restated Certificate of
GeoWaste Incorporated
4(d) Certificate of Designation of Preferred Stock of
GeoWaste Incorporated
4(e) Purchase Agreement, dated March 5, 1992, between
GeoWaste Incorporated, the Delaware State Employee's
Retirement Fund and the Trust for Defined Benefit Plan
of ICI American Holdings Inc.
4(f) Form of Debenture
4(g) Registration Rights Agreement dated March 5, 1992, by
and between GeoWaste Incorporated, the Delaware State
Employees' Retirement Fund and the Trust for Defined
Benefit Plan of ICI American Holdings Inc.
4(h) Registration Rights Agreement dated August 2, 1991, by
and between GeoWaste Incorporated and each of the
entities listed on Exhibit A thereto.
4(i) First Escrow Agreement dated August 2, 1991, by and
between GeoWaste Incorporated, Frederick J. Iseman,
James Swistock, Matthew Fulton, Brian Russell, James R.
Jones, Paul Thomas Cohen, William vanden Heuvel, Balis
& Zohn, Inc., and IBJ Schroder Bank & Trust Company.
II-4
<PAGE> 19
4(j) Second Escrow Agreement dated August 2, 1991, by and
between GeoWaste Incorporated, the parties listed on
Schedule A thereto, Kurt Wilkening and IBJ Schroder
Bank & Trust Company.
4(k) Equivest First Convertible Debt Exchange Agreement
dated August 2, 1991, by and between GeoWaste
Incorporated and the parties listed on Schedule A
thereto.
4(l) Equivest Second Convertible Debt Exchange Agreement
dated August 2, 1991, by and between GeoWaste
Incorporated and the parties listed on Schedule A
attached thereto.
4(m) Stockholders' Agreement dated August 2, 1991, by and
between GeoWaste Incorporated, Advance Ross
Corporation, Allen & Company Incorporated, Federick J.
Iseman, Harve Ferrill, Gian Caterine, Kurt Wilkening,
the persons or entities listed on Schedule A attached
thereto and the persons or entities listed on Schedule
B attached thereto.
4(n) Voting Agreement dated March 5, 1992, by and between
GeoWaste Incorporated, the Delaware State Employees'
Retirement Fund and the Trust for Defined Benefit Plan
of ICI American Holdings Inc., Frederick J. Iseman,
Gian Caterine, Amy C. MacF. Burbott, Harve Ferrill,
James Swistock, Advance Ross Corporation and Allen &
Company Incorporated.
5 Opinion of Mahoney Adams & Criser, P.A., counsel for
the Company, concerning the legality of the securities
being registered.
23(a) Consent of Coopers & Lybrand, LLP, independent
accountants.
23(b) Consent of Mahoney Adams & Criser, P.A., counsel for
the Company (included in Exhibit 5).
99(a) GeoWaste Incorporated 1992 Stock Option Plan.
99(b) GeoWaste Incorporated Non-Qualified Stock Option
Agreement effective as of July 1, 1991 between Amy C.
MacF. Burbott and GeoWaste Incorporated.
99(c) GeoWaste Incorporated Non-Qualified Stock Option
Agreement effective as of July 1, 1991 between Raymond
F. Chase and GeoWaste Incorporated.
II-5
<PAGE> 20
99(d) GeoWaste Incorporated Non-Qualified Stock Option
Agreement effective as of July 1, 1991 between Harve
Ferrill and GeoWaste Incorporated.
Item 9. Undertakings
(1) The Company hereby undertakes:
(a) To file, during any period in which offers or sales of
the securities registered hereunder are being made, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that the undertakings included in
(1)(a)(i) and (1)(a)(ii) of this Item 9 do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
(2) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act, (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-6
<PAGE> 21
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of St. Augustine, State of Florida, on the 3rd day of June, 1996.
GEOWASTE INCORPORATED
By: /s/ Kevin R. Kohn
--------------------------
Kevin R. Kohn
President
II-7
<PAGE> 22
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Amy C. MacF. Burbott Chief Executive Officer,
- ----------------------------- Chairman of the Board and June 3, 1996
Amy C. MacF. Burbott Director
/s/ Kevin R. Kohn President
- ----------------------------- Director
Kevin R. Kohn June 3, 1996
/s/ Raymond F. Chase Vice President June 3, 1996
- ----------------------------- Chief Financial Officer
Raymond F. Chase Treasurer & Secretary
/s/ Robert J. Cresci Director June 3, 1996
- -----------------------------
Robert J. Cresci
/s/ Steven M. Engel Director June 3, 1996
- -----------------------------
Steven M. Engel
/s/ Harve A. Ferrill Director June 3, 1996
- -----------------------------
Harve A. Ferrill
/s/ Fredrick J. Iseman Director June 3, 1996
- -----------------------------
Fredrick J. Iseman
</TABLE>
II-8
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGINATION BY
EXHIBIT EXHIBITSEQUENTIAL
NUMBER DESCRIPTION NUMBERING SYSTEM
- ------- ----------- ----------------
<S> <C>
4(a) Certificate of Incorporation
of GeoWaste Incorporated,
as amended and restated
(incorporated by reference
from Exhibit A to the Proxy
filed November 25, 1991
(File No. 0-9278)).
4(b) Bylaws of GeoWaste Incorporated
(incorporated by reference
from Exhibit 3(b) to the Annual
Report on Form 10-K for the
year ended December 31, 1987
(File No. 0-9278)).
4(c) Amendment to Amended and Restated
Certificate of GeoWaste
Incorporated (incorporated by
reference from Exhibit 3.4 to
the Annual Report on Form 10-K for
the year ended December 31, 1992
(File No. 0-9278)).
4(d) Certificate of Designation of
Preferred Stock of GeoWaste
Incorporated filed November 25, 1991
(File No. 0-9278)).
</TABLE>
<PAGE> 24
<TABLE>
<S> <C>
4(e) Purchase Agreement, dated March
5, 1992, between GeoWaste
Incorporated, the Delaware State
Employee's Retirement Fund and
the Trust for Defined Benefit
Plan of ICI American Holdings Inc.
(incorporated by reference from
Exhibit 4.1 to the Current Report on
Form 8-K filed March 13, 1992 (File No.
0-9278)).
4(f) Form of Debenture (incorporated by
reference from Exhibit 4.2 to the
Current Report on Form 8-K filed March
13, 1992 (File No. 0-9278)).
4(g) Registration Rights Agreement
dated March 5, 1992, by and
between GeoWaste Incorporated,
the Delaware State Employees'
Retirement Fund and the Trust
for Defined Benefit Plan of ICI
American Holdings Inc (incorporated by
reference from Exhibit 4.3 to the
Current Report on Form 8-K filed March
13, 1992 (File No. 0-9278)).
4(h) Registration Rights Agreement
dated August 2, 1991, by and
between GeoWaste Incorporated and
each of the entities listed on
Exhibit A thereto (incorporated by
reference to Exhibit 4(D) to the
Current Report filed on Form 8-K filed
August 19, 1991 (File No. 0-9278)).
</TABLE>
<PAGE> 25
<TABLE>
<S> <C>
4(i) First Escrow Agreement dated
August 2, 1991, by and between
GeoWaste Incorporated, Frederick
J. Iseman, James Swistock, Matthew
Fulton, Brian Russell, James R.
Jones, Paul Thomas Cohen, William
vanden Heuvel, Balis & Zohn, Inc.,
and IBJ Schroder Bank & Trust
Company (incorporated by reference from
Exhibit 4(B) to the Current Report on
Form 8-K filed August 19, 1991 (File No.
0-9278)).
4(j) Second Escrow Agreement dated August
2, 1991, by and between GeoWaste
Incorporated, the parties listed on
Schedule A thereto, Kurt Wilkening
and IBJ Schroder Bank & Trust Company
(incorporated by reference from Exhibit
4(C) to the Current Report on Form 8-K
filed August 19, 1991 (File No. 0-9278)).
4(k) Equivest First Convertible Debt
Exchange Agreement dated August 2,
1991, by and between GeoWaste
Incorporated and the parties listed
on Schedule A thereto (incorporated by
reference from Exhibit 2(B) to the
Current Report on Form 8-K filed August
19, 1991 (File No. 0-9278)).
4(l) Equivest Second Convertible Debt
Exchange Agreement dated August 2,
1991, by and between GeoWaste
Incorporated and the parties listed
on Schedule A attached thereto
(incorporated by reference from Exhibit
2(B) to the Current Report on Form 8-K filed
August 19, 1991 (File No. 0-9278)).
</TABLE>
<PAGE> 26
<TABLE>
<S> <C>
4(m) Stockholders' Agreement dated August 2,
1991, by and between GeoWaste
Incorporated, Advance Ross Corporation,
Allen & Company Incorporated, Federick
J. Iseman, Harve Ferrill, Gian Caterine,
Kurt Wilkening, the persons or entities
listed on Schedule A attached thereto
and the persons or entities listed on
Schedule B attached thereto
(incorporated by reference from Exhibit
4(A) to the Current Report of Form 8-K
filed August 19, 1991 (File No.
0-9278)).
4(n) Voting Agreement dated March 5, 1992,
by and between GeoWaste Incorporated,
the Delaware State Employees' Retirement
Fund and the Trust for Defined Benefit
Plan of ICI American Holdings Inc.,
Frederick J. Iseman, Gian Caterine,
Amy C. MacF. Burbott, Harve Ferrill,
James Swistock, Advance Ross Corporation
and Allen & Company Incorporated
(incorporated by reference from Exhibit
4.4 to the Current Report on Form 8-K
filed March 13, 1992 (File No. 0-9278)).
5 Opinion of Mahoney Adams & Criser,
P.A., counsel for the Company, concerning
the legality of the securities being
registered.
23(a) Consent of Coopers & Lybrand, LLP
independent accountants.
23(b) Consent of Mahoney Adams & Criser, P.A.,
counsel for the Company (included in
Exhibit 5).
99(a) GeoWaste Incorporated 1992 Stock
Option Plan.
99(b) GeoWaste Incorporated Non-Qualified
Stock Option Agreement effective as
of July 1, 1991 between GeoWaste
Incorporated and Amy C. MacF. Burbott.
</TABLE>
<PAGE> 27
<TABLE>
<S> <C>
99(c) GeoWaste Incorporated Non-Qualified
Stock Option Agreement effective as
of July 1, 1991 between GeoWaste
Incorporated and Raymond F. Chase.
99(d) GeoWaste Incorporated Non-Qualified
Stock Option Agreement effective as
of July 1, 1991 between GeoWaste
Incorporated and Harve Ferrill.
</TABLE>
<PAGE> 1
EXHIBIT 5
MAHONEY ADAMS & CRISER, P.A.
3400 BARNETT CENTER - 50 NORTH LAURA STREET
POST OFFICE BOX 4099
JACKSONVILLE, FLORIDA 32201
(904) 354-1100 - TELECOPIER (904) 798-2698
June 13, 1996
GeoWaste Incorporated
24 Cathedral Place, Suite 208
St. Augustine, Florida 32084
Re: GeoWaste Incorporated
Gentlemen:
We refer to the Registration Statement on Form S-8 ("the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), filed by GeoWaste Incorporated, a Florida corporation (the "Company")
with the Securities and Exchange Commission (the "Commission") on June 14,
1996. The Registration Statement covers an aggregate of 1,378,000 shares (the
"Shares") of common stock, par value $.10 per share ("Common Stock"), together
with such indeterminate number of additional shares of Common Stock as may be
issuable as a result of stock splits, stock dividends or similar transactions,
authorized for issuance pursuant to the exercise of rights under the GeoWaste
Incorporated 1992 Stock Option Plan (the "Plan"), the GeoWaste Non-Qualified
Stock Option Agreement effective as of July 1, 1991 between the Company and Amy
C. MacF. Burbott, the GeoWaste Non-Qualified Stock Option Agreement effective
as of July 1, 1991 between the Company and Harve Ferrill, and the GeoWaste
Non-Qualified Stock Option Agreement effective as of July 1, 1991 between the
Company and Raymond F. Chase (together with the GeoWaste Non-Qualified Stock
Option Agreements referred to above, the "Stock Option Agreements").
We have examined the originals, or photostatic or certified copies, of
such records of the Company, certificates of officers of the Company and of
public officials, and such other documents as we have deemed relevant and
necessary as the basis for the opinion set forth below. In such examination 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 photostatic or certified copies and the
authenticity of the originals of such copies.
<PAGE> 2
Based upon the foregoing, we are of the opinion that the Shares, when
sold and delivered by the Company as contemplated by and in accordance with the
Plan and the Option Agreements, will be legally issued, fully paid and non-
assessable.
We hereby consent to the use of our name in the Registration Statement
as counsel who will pass upon the legality of the Shares for the Company and as
having prepared this opinion, and to the use of this opinion as an exhibit to
the Registration Statement. We further consent to the use of our name as
counsel for the Company.
In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act, or the rules or regulations of the Commission promulgated
thereunder.
Very truly yours,
Mahoney Adams & Criser, P.A.
<PAGE> 1
EXHIBIT 23(a)
COOPERS COOPERS & LYBRAND
& LYBRAND a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
GeoWaste Incorporated on Form S-8 or our report dated March 29, 1996, on our
audits of the consolidated financial statementS and financial statement
schedule of GeoWaste Incorporated as of December 31, 1995 and 1994, and for the
years ended December 31, 1995, 1994, and 1993, which report is incorporated by
reference in this Annual Report on Form 10-K.
We also consent to the reference to our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Jacksonville, Florida
June 14, 1996
<PAGE> 1
EXHIBIT 99(a)
GEOWASTE INCORPORATED
1992 STOCK OPTION PLAN
1. STATEMENT OF PURPOSE. The purpose of this 1992 Stock Option Plan ("Plan")
is to benefit GeoWaste Incorporated ("Company") and its subsidiaries designated
by the Board of Directors of the Company ("Board") as eligible to receive
options under this Plan ("Participating Subsidiaries") by offering certain
present and future employees of the Company and Participating Subsidiaries an
opportunity to become holders of stock in the Company over a period of years,
thereby giving them a stake in the growth and prosperity of the Company.
2. EFFECTIVE DATE. The effective date of this Plan shall be the date it is
adopted by the Board, provided the stockholders of Company approve this Plan as
required by Rule 16b-3 under the Securities Exchange Act of 1934, as amended
("Rule 16b-3") and any other applicable law. Any options granted under this
Plan before the date the Plan is approved by the stockholders shall
automatically be granted subject to such approval.
3. ADMINISTRATION. Except as provided in Paragraph 17, the Plan shall be
administered by a committee appointed by the Board ("Committee"). No person
shall serve as a member of the Committee unless such person is a "disinterested
person" within the meaning of Rule 16b-3.
The Committee acting in its absolute discretion shall have the power to
interpret this Plan and (subject to Paragraph 17) to take such other action in
the administration and operation of this Plan as the Committee deems
appropriate under the circumstances consistent with the purpose of this Plan.
Any interpretation of the Plan by the Committee shall be final, conclusive and
binding on the Company, the optionee, his or her personal representative and
any other person directly or indirectly affected by such action with respect to
grants to employees.
4. ELIGIBILITY. Options shall be granted only to those employees of the
Company and Participating Subsidiaries designated by the Committee as eligible
for options on the basis of the special importance of their services in the
development and operations of the Company or Participating Subsidiaries
("Eligible Persons").
5. AVAILABLE SHARES. There shall be 803,000 shares of common stock of the
Company, par value $.10 per share ("Stock"), reserved for use under this Plan,
subject to adjustment as provided in Paragraph 14, and such shares of Stock
shall be reserved to the extent that the Company deems appropriate from
authorized but unissued shares of Stock and from shares of Stock which have
been reacquired by the Company. Furthermore, any shares of Stock subject to an
option which remain after the cancellation, expiration or exchange of such
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option thereafter shall again become available for use under this Plan.
6. LIFE OF PLAN. The Plan shall terminate (a) on May 1, 2002 or, if earlier,
(b) immediately following the issuance of all of the Stock reserved under
Paragraph 5 as a result of exercise of Options granted under this Plan. No
options shall be granted under this Plan after the Plan terminates.
7. GRANTING, VESTING AND DURATION OF OPTIONS. The Committee acting in its
absolute discretion may grant options to purchase shares of Stock to Eligible
Persons from time to time upon such terms and conditions as such Committee
deems appropriate and consistent with the terms and purpose of this Plan. Each
grant of an option shall be evidenced by a written option document describing
the terms and conditions of the grant. The Committee shall determine the term
of the option; provided, however, that the term of any option granted under
this Plan shall not be less than FIVE years nor more than ten years from the
date of the grant, and, further provided, that the option term may not extend
beyond termination of employment except in accordance with Paragraph 12 hereof.
The option document shall also incorporate such other terms and conditions as
the Committee in its absolute discretion deems appropriate, including, but not
limited to, restrictions on the number of shares which first become vested or
exercisable at any time during the term of the option and a provision for full
vesting in the event employment terminates by reason of death or permanent
disability. Options granted under the Plan are not intended to be treated as
incentive stock options as defined in Section 422 of the Internal Revenuc Code
of 1986, as amended (the "Code").
The Committee in its absolute discretion may accelerate the vesting of any
option subject to such terms and conditions as the Committee deems necessary
and appropriate to effectuate the purpose of the Plan including, without
limitation, a requirement that the optionee grant to the Company an option to
repurchase all or a portion of the number of shares of Stock acquired upon
exercise of the accelerated option for the fair market value of such shares on
the date of grant.
8. OPTION PRICE. The option price shall be determined by the Committee and
shall not be less than the fair market value of the Stock on the date as of
which the option is granted. For purposes of this Plan, the term "fair market
value" of the Stock on any given date means (a) if the Stock is listed on a
national securities exchange or quoted in an automated interdealer quotation
system, the last sales price or, if unavailable, the average of the closing bid
and asked prices per share of the Stock on such date (or, if there was no
trading or quotation in the Stock on such date, on the next preceding date on
which there was trading or quotation) as provided by one of such organizations;
or (b) if the Stock is not listed on a national securities exchange or quoted
in an automated interdealer
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quotation system, as determined by the Board in good faith in its sole
discretion.
9. VESTING UPON CHANGE IN CONTROL. Any option granted under the Plan to an
optionee who is an employee of the Company or any of its subsidiaries on the
date of a "Change in Control" shall to the extent provided in the option
document be immediately vested in full on such date without regard to the
vesting schedule set forth in the option document to the extent that shares of
Stock have been or will be released from escrow as a result of such "Change in
Control" under the terms of the Plan of Reorganization. The term "Change in
Control" shall mean the occurrence during the specified term of an option
granted under the Plan of any of the following events
(a) a "liquidation event" as defined in Section 2.3(c)(vi) of the
Plan of Reorganization;
(b) any capital reorganization, reclassification, consolidation or
merger, or any sale, issuance or other transfer or series of
related sales, or issuances and/or other transfers of Stock or
any other capital stock of the Company having the right to
vote in elections for the Board, which results in any person
or group of affiliated persons owning of record and/or
beneficially, or having the right to vote, capital stock of
the Company having the right to elect a majority of the Board;
or
(c) any sale, lease or other conveyance of assets by the Company
and its subsidiaries which results in any person or group of
affiliated persons other than the Company owning, leasing or
otherwise holding (i) all or substantially all of the assets
of the Company or (ii) all or substantially all of the assets
of the Company other than the capital stock of the Company's
subsidiaries, and all or substantially all of the assets of
the Company's subsidiaries.
10. EXERCISE OF OPTION. An option may be exercised by giving written notice
to the Company, attention of the Secretary, specifying the number of shares to
be purchased, accompanied by the full purchase price for the shares to be
purchased either in cash or by check acceptable to the Company.
An option may be exercised with respect to all or any part of the shares of
Stock with respect to which such option has become vested either at the time
such option First becomes vested with respect to such shares or at any time
thereafter during the terms of the option.
At the time of any exercise of any option, the Company may, if it shall
determine it necessary or desirable for any reason, require
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the optionee or his personal representative, as the case may be, as a condition
upon the exercise thereof, to deliver to the Company a written representation
of present intention to purchase the Stock for investment and not for
distribution. In the event such representation is required to be delivered, an
appropriate legend may be placed upon each certificate delivered to the
optionee upon his or her exercise of part or all of the option and a stop
transfer order may be placed with the transfer agent.
Each option shall also be subject to the requirement that, if at any time the
Company determines, in its absolute discretion, that the listing, registration
or qualification of the shares of Stock subject to the option upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the issue or purchase of Stock thereunder,
the option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company. Certificates
representing the Stock transferred upon the exercise of an option granted under
this Plan may at the discretion of the Company bear a legend to the effect that
such Stock has not been registered under the Securities Act of 1933 ("1933
Act") or any applicable state securities law and that such Stock may not be
sold or offered for sale in the absence of an effective registration statement
as to such Stock under the 1933 Act and any applicable state securities law or
an opinion, in form and substance satisfactory to the Company, of legal counsel
acceptable to the Company, that such registration is not required.
11. WITHHOLDING. The exercise of any option granted under this Plan shall
constitute an optionee's full and complete consent to whatever action the
Committee directs to satisfy the federal and state tax withholding
requirements, if any, which the Committee in its discretion deems applicable to
such exercise, including retaining a portion of the Stock purchased pursuant to
the option.
12. TERMINATION OF EMPLOYMENT. An option document may provide for exercise of
the option following termination of employment subject to the following
provisions of this Paragraph 12. Temporary absence from employment because of
illness, vacation, approved leaves of absence and transfers of employment among
the Company and its subsidiaries shall not be considered to terminate
employment or to interrupt continuous employment.
In the event the optionee's employment terminates for reasons which the
Committee in its absolute discretion determines constitute an amicable
termination, such optionee's option shall expire and all rights to purchase
shares of Stock pursuant thereto (determined as of the date of such termination
based on the portion of the option which is vested as of such date) shall
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terminate thirty (30) days after the date of such termination or, if earlier,
according to the option's specified term.
In the event the optionee's employment terminates for one or more of the
following reasons, all options granted to such optionee shall automatically
expire and all rights to purchase shares of Stock thereto (whether or not
previously vested) shall terminate as of the optionee's termination date:
(i) The optionee uses for personal gain or discloses to
unauthorized persons any confidential or proprietary
information or trade secrets of the Company or its
subsidiaries;
(ii) The conduct of the optionee potentially violates any
applicable civil or criminal law or violates any written rules
of ethical corporate conduct for officers and employees of the
Company or its subsidiaries;
(iii) The optionee breaches any agreement with or violates
any fiduciary obligation to the Company or its subsidiaries;
or
(iv) The Committee in its absolute discretion determines that
the optionee's termination is for reasons that are adverse to
the Company.
In the event the optionee's employment terminates because of the optionee's
death or permanent disability, the option shall automatically expire and all
rights to purchase shares of Stock pursuant thereto (determined as of such
termination date including any acceleration of vesting provided under the terms
of the option document) shall terminate on the date which is sixty (60) days
after the optionee's employment terminates as a result of death or disability
or, if earlier, according to the option's specified term.
13. NON-TRANSFERABILITY OF OPTIONS. No option shall be transferable by the
optionee and each option shall be exercisable during an optionee's lifetime
only by the optionee. However, to the extent the option provides for exercise
following permanent disability or death, the option may be exercised by the
optionee's legal representative or, in the event of the optionee's death, the
personal representative of the optionee's estate.
14. ADJUSTMENT UPON CHANGE IN CAPITALIZATION. The number of shares of Stock
reserved under paragraph 5, the number of shares subject to options granted
under the Plan and the option price for such shares shall be adjusted by the
Committee in an equitable manner to reflect any reorganization or restructuring
of the capitalization of the Company, other than an event described in
Paragraph 15, including, but not limited to, such changes as stock dividends or
stock splits. However, if any adjustment under this Paragraph 14 would create
a
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fractional share of Stock or a right to acquire a fractional share of Stock,
such fractional share shall be disregarded and the number of shares of Stock
reserved under this Plan and the number subject to any options granted under
this Plan shall be the next lower number of shares of Stock, rounding all
fractions downward.
15. SALE OR MERGER. This paragraph 15 shall apply in the event of any merger,
consolidation or reorganization of the Company with any other corporation or
corporations or sale of all or substantially all of its assets to another
corporation or corporations, including, but not limited to a "change in
control" described in Paragraph 9. If the agreement with respect to such
transaction provides for the substitution or assumption of this Plan or the
options then outstanding under this Plan, the Board shall adjust and
substitute, on an equitable basis, for the shares of Stock then subject to the
Plan or to outstanding options. If any adjustment under this Paragraph 15 would
create a fractional share of Stock or a right to acquire a fractional share of
Stock, such fractional share shall be disregarded and the number of shares of
Stock reserved under this Plan and the number subject to any options granted
under this Plan shall be the next lower number of shares of Stock, rounding all
fractions downward.
However, if the agreement with respect to a transaction described in this
Paragraph 15 does not provide for the assumption or substitution of the Plan or
Options granted under the Plan, then each outstanding option at the direction
and discretion of the Board (a) may (subject to such conditions, if any, as the
Board deems appropriate under the circumstances) be cancelled unilaterally in
exchange for the number of whole shares of Stock (and cash in lieu of a
fractional share), if any, equal to the difference between the option price for
the unexercised shares and the "fair market value" of such shares as determined
in accordance with Paragraph 8 or (b) may be cancelled if the option price
equals or exceeds the "fair market value" of a share of Stock on such date as
determined in accordance with Paragraph 8.
16. NO EMPLOYMENT RIGHT. Nothing contained in the Plan or in any option
granted pursuant thereto shall confer upon any optionee any right to be
continued in the employment of the Company or any subsidiary of the Company, or
interfere in any way with the right of the Company or its subsidiaries to
terminate the optionee's employment at any time.
17. AMENDMENT OR TERMINATION OF PLAN. This Plan may be amended by the Board
from time to time to the extent that the Board deems necessary or appropriate;
provided, however, no such amendment shall be made absent the approval of the
stockholders of the Company (a) to increase the number of shares reserved under
Paragraph 5, (b) if stockholder approval of such amendment is required for
continued compliance with Rule 16b-3 of the Exchange Act, or (c) if stockholder
approval of such amendment is required by any other
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applicable laws or regulations, including the regulations of any national
securities exchange with which the Stock is listed. The Board also may suspend
the granting of options under this Plan at any time and may terminate this Plan
at any time; provided, however, the Board shall not have the right to modify,
amend or cancel any option granted before such suspension or termination unless
the optionee consents in writing to such modification, amendment or
cancellation.
18. GOVERNING LAW. This Plan shall be construed under the laws of the State
of Delaware.
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EXHIBIT 99(b)
GEOWASTE INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
This Option Agreement ("Agreement") is made by and between GeoWaste
Incorporated, a Delaware Corporation, formerly Utah Shale Land & Minerals
Corporation ("Company") and Amy C. MacF. Burbott, residing at 5 Woodholm Road,
Manchester-by-the-Sea, Massachusetts 01944 ("Executive").
W I T N E S S E T H:
WHEREAS, the Company has granted to Executive certain options to purchase stock
in the Company in consideration of certain services performed by Executive for
the Company prior to August 1, 1991 and in connection with her employment as
President & Chief Executive Officer of the Company from August 1, 1991; and
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions of such option grant;
NOW, THEREFORE, for and in consideration of mutual premises and covenants
contained herein, the parties agree as follows:
Section 1. Grant. Subject to all the terms and conditions of this Agreement,
the Company hereby grants to Executive a non-qualified stock option ("Option")
to purchase from the Company 1,000,000 shares of GeoWaste Incorporated Common
Stock, par value $.10 per share ("Stock") at an option price of $0.50 per share
("Option Price").
Section 2. Effective Date. This Option is granted effective as of June 28,
1991.
Section 3. Vesting.
3.1 General. Executive shall be fully vested in the Option and this Option
shall be immediately exercisable to the extent of 200,000 shares (or such other
number as may result from an adjustment under Section 7). The Executive's
vested interest in the remaining 800,000 shares (or such other number as may
result from an adjustment under Section 7) granted under this Option
("Nonvested Shares") as of any date shall equal the lesser of A, B, and C
below, where
A = the number of shares of Stock which become available as a
result of the Company's satisfaction of the Performance Target
Ratchets described in Section 3.3 on or before such date;
B = the product 19,048 and her number of full calendar months of
employment as President and Chief Executive Officer from
August 1, 1991 through such date; and
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C = the number of shares of Stock which have been released from
escrow under the Reorganization Plan.
The Executive shall forfeit her rights to purchase the Nonvested Shares (1) to
the extent the Company fails to meet the Performance Target Ratchets on or
before the Final Valuation Date and Nonvested Shares are not released under
Section
3.5 or Section 3.6 or (2) except as provided in Section 3.6 or Section 3.7,
to the extent Executive terminates employment before January 31, 1995.
3.2 Definitions. For purposes of this Section 3, the following capitalized
terms shall have the following meanings:
(a) Average Trading Price - means as of any Valuation Date the arithmetic
average of the Closing Price of Stock on each day during the relevant Valuation
Period.
(b) Cause - means (i) the material breach of any provision of the
employment agreement between Executive and the Company, (ii) the breach of any
representations or warranties under the employment agreement between Executive
and the Company which materially and detrimentally affect the Company or (iii)
conviction by a court of competent jurisdiction of the Commission of a felony.
(c) Closing Price - means (i) the closing bid price of the Stock quoted by
NASDAQ or, (ii) if the Stock is not then traded on the NASDAQ System, the
closing price of the shares of Stock reported by the national securities
exchange on which the shares are traded, and (iii) if the shares of Stock are
not traded on any such national exchange, the appraised fair market value per
share of the outstanding shares of Stock, determined by an independent
investment banker reasonably acceptable to the Company and Frederick J. Iseman.
(d) Equity Sale - means any issuance or sale by the Company of shares of
Stock to any Person after August 2, 1991, including, without limitation, shares
issuable as full or partial consideration for any acquisition of the assets or
stock of another entity by the Company or any of its subsidiaries which shares
must be issued and outstanding and may not be subject to any contingency
whatsoever (e.g., an "earn-out" formula or other contingent purchase price
mechanism), but an Equity Sale shall not include: (i) shares issued pursuant to
any employee stock option or incentive stock option plan (whether qualified or
nonqualified) or employee stock ownership plan; (ii) shares issued pursuant to
the exercise of those certain warrants granted to Allen & Company Incorporated
("Allen") pursuant to that certain Warrant Agreement between Allen and the
Company dated August 2, 1991; (iii) shares issuable in accordance with the
terms of the Reorganization Plan or pursuant to the related exchange agreements
between the Company and certain former debtholders of Equivest Waste Solutions,
Inc. or to certain investors pursuant to the private placement described in
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the Reorganization Plan on November 25, 1991 or (iv) shares issuable by virtue
of any subdivision (by stock split, stock dividend or otherwise) of the
outstanding shares of Stock (as described in Section 3.4(b) below).
(e) Final Valuation Date - means the last day in the Valuation Period
ending July 31, 1994 in which the NASDAQ over-the-counter market is open for
trading or such later date as may result from an amendment of the
Reorganization Plan delaying the final release of shares under the escrow
arrangement.
(f) Liquidation Event - means (i) the sale by the Company of all of it
assets and/or the assets of its subsidiaries, taken as a whole, whether or not
there is a subsequent dissolution of the Company and liquidation of its assets,
(ii) the merger or consolidation of the Company with and into a third Person
which third Person is the surviving corporation, or (iii) the dissolution and
liquidation of the Company.
(g) Liquidation Value - means (i) with respect to an asset sale described
in Section 3.2(f)(i), the amount of the net proceeds from such asset sale
which are available for distribution with respect to each share of Stock; (ii)
with respect to a merger or consolidation described in Section 3.2(f)(ii), the
value of any cash (or cash equivalent) consideration for each share of Stock
exchanged in such merger or consolidation plus the stated value (or if no
stated value, then the fair market value, as determined by independent third
party valuation consultants chosen by the Company) of non-cash consideration
received in exchange for each share of Stock as a consequence of such merger or
consolidation; and (C) with respect to a dissolution or liquidation described
in Section 3.2(f)(iii), the value of the liquidating distribution for each
share of Stock determined by the Company's Board of Directors and approved by
holders of Stock.
(h) Performance Period - means the period beginning February 1, 1992 and
ending July 31, 1994 or such later date as may result from an extension of the
"valuation periods" under the Reorganization Plan.
(i) Person - means any individual, corporation, partnership, association,
trust or any unincorporated organization or any unit or subdivision of
government.
(j) Reorganization Plan - means the Agreement and Plan of Reorganization
dated August 2, 1991.
(k) Valuation Date - means the last day in any Valuation Period in which
the NASDAQ over-the-counter market is open for trading.
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(l) Valuation Period - means each three consecutive month period
commencing February 1, 1992 and ending each April 30, July 31, October 31 and
January 31 thereafter within the Performance Period.
3.3 Performance Target Ratchets. Except in the case of the Final
Valuation Date or a Liquidation Event, 200,000 of the Nonvested Shares (or such
other number as may result from an adjustment under Section 7) shall become
available on each of four Valuation Dates in the Performance Period provided
the Average Trading Price of the Stock on each such Valuation Date is not less
than Average Trading Price opposite the applicable Performance Target Ratchet
for such Valuation Date described below:
<TABLE>
<CAPTION>
Performance Target Ratchet Average Trading Price
- --------------------------- ---------------------
<S> <C>
First Ratchet $1.116
Second Ratchet $1.655
Third Ratchet $2.188
Fourth Ratchet $2.715
</TABLE>
Except with respect to the Final Valuation Date, no more than one Ratchet shall
be deemed to have been satisfied on any Valuation Date and the Ratchets must be
satisfied in chronological order. For example, if the Average Trading Price
for the Stock is $2.188 on the first valuation Date in the Performance Period,
the First Ratchet will have been satisfied and 200,000 of the Nonvested Shares
shall become available. The Average Trading Price must reach at least $1.655
on a subsequent Valuation Date in order for additional Nonvested Shares to
become available. The Average Trading Prices set forth above shall be subject
to adjustment as provided in Section 3.4.
3.4 Adjustments to Performance Target Ratchets. The Average Trading
Prices opposite the Performance Target Ratchets described in Section 3.3 above
shall be adjusted in the event of an Equity Sale or in the event of a
subdivision of the Stock.
(a) Equity Sale. If the Company completes an Equity Sale during the
Performance Period, the Average Trading Prices set forth opposite the
Performance Target Ratchets in Section 3.3 shall be adjusted downward to
account for the dilution created by the increase in the number of issued and
outstanding shares of Stock. The adjusted Average Trading Price as of any
Valuation Date following any Equity Sale shall be equal to:
A + 2,000,000 + B
-----------------
A + B x C where
A = the number of shares of Stock issued and outstanding as of the
applicable Valuation Date, exclusive of the shares sold
pursuant to the Equity Sale and exclusive of any shares of
Stock which are then deposited in either the
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first or second escrow pursuant to the Reorganization Plan;
B = the number of shares of Stock issued pursuant to the Equity
Sale; and
C =(i) $1.00, if the First Ratchet has not been satisfied as of
such Valuation Date;
(ii) $1.50, if the First Ratchet has been satisfied as of
such Valuation Date, but the Second Ratchet has not
been satisfied;
(iii) $2.00, if the First and Second Ratchets have been
satisfied as of such Valuation Date, but the Third
Ratchet has not been satisfied, or
(iv) $2.50, if the First, Second and Third Ratchets have
been satisfied as of such Valuation Date, but the
Fourth Ratchet has not been satisfied.
(b) Subdivision/Combination. If the Company at anytime subdivides (by any
stock split, stock dividend or otherwise) the outstanding shares of Stock into
a greater number of shares, the Average Trading Prices opposite the Performance
Target Ratchets in Section 3.3 shall be proportionately reduced, and if the
Company at anytime combines (by reverse stock split or otherwise) the
outstanding shares of Stock into a smaller number of shares, Average Trading
Prices opposite the Performance Target Ratchets in Section 3.3 shall be
proportionately increased.
3.5 Final Valuation Date. Notwithstanding the foregoing, if the Average
Trading Price on the Final Valuation Date falls between any of the release
points under the Reorganization Plan, then Nonvested Shares shall become
available on August 15, 1994 equal to the difference between A and B, where
800,000* x Average Trading Price as of Final Valuation Date
-----------------------------------------------------------
A = $2.715
B = the number of Nonvested Shares which have previously become available
during the Performance Period.
* This number shall be adjusted to reflect any adjustment under Section
7 which occurs before August 15, 1994.
3.6 Change in Control.
(a) Liquidation Event. Notwithstanding the foregoing, if there is a
Liquidation Event while Executive is employed as President and Chief Executive
Officer of the Company and the Liquidation Value of a share of Stock is at
least $1.116, then the Executive shall be
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fully vested in that portion of the Nonvested Shares equal to the difference
between A and B below without regard to her length of employment with the
Company
800,000* x Liquidation Value
----------------------------
A = $2.715
B = the number of shares of Stock which became available under
this Agreement prior to such Liquidation Event.
* This number shall be adjusted to reflect any adjustment under Section
7 which occurs before the Liquidation Event.
(b) Other Change in Control. If Executive is employed as President and
Chief Executive Officer (or a more senior position) upon the occurrence of any
of the following events:
(i) any capital reorganization, reclassification, consolidation or
merger, or any sale, issuance or other transfer or series of related
sales, or issuances and/or other transfers of Stock or any other
capital stock of the Company having the right to vote in elections for
the Board, which results in any person or group of affiliated persons
owning of record and/or beneficially, or having the right to vote,
capital stock of the Company having the right to elect a majority of
the Board; or
(ii) any sale, lease or other conveyance of assets by the Company
and its subsidiaries which results in any person or group of
affiliated persons other than the Company owning, leasing or otherwise
holding (i) all or substantially all of the assets of the Company or
(ii) all or substantially all of the assets of the Company other than
the capital stock of the Company's subsidiaries, and all or
substantially all of the assets of the Company's subsidiaries;
then Executive shall be fully vested in this Option without regard to her
length of employment to the extent that shares of Stock have been or will be
released from escrow under the Reorganization Plan as a result of such event.
3.7 Termination of Employment. Except in the event Executive's employment
is terminated without Cause prior to the Final Valuation Date, if Executive
terminates employment with the Company for any reason whatsoever, including
death or disability, before this Option is fully vested, any portion of this
Option which is not vested on the date Executive terminates her employment
shall be automatically forfeited as of her employment termination date.
However, in the event that Executive's employment is terminated without Cause
before the Final Valuation Date and additional Performance Target Ratchets are
achieved within nine (9) months of
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the date of such termination but before the end of the Performance Period
("Extension"), then Executive's vested interest in this Option shall equal the
lesser of A or B where
A = the total number of shares of Stock which become available
before the end of the Extension including those which become
available upon the attainment of the additional Performance
Target Ratchets, and
B = 19,048 X the lesser of forty-two (42) or the number of full
calendar months that have elapsed from August 1, 1991 through
the first anniversary of Executive's termination date.
Section 4. Duration of Option. This Option shall expire when exercised in
full; provided, however, the Option also shall expire immediately and
automatically on the earlier of (a) June 28, 2001, (b) the end of the sixty
(60) day period which begins on the date Executive's employment by the Company
terminates for death or disability, (c) the end of the thirty (30) day period
which begins on the date the Executive resigns or her employment is terminated
by the Company without Cause before the Final Valuation Date or (d) such
earlier date as is established by the Board of Directors of the Company in the
event of a dissolution or liquidation pursuant to Section 10; and, further
provided, that in the event Executive's employment is terminated without Cause
before the Final Valuation Date, this Option, to the extent vested and
exercisable on the date her employment so terminates, shall expire at the end
of the thirty (30) day period which begins on the date her employment so
terminates and the remainder of the Option shall expire at the end of the
thirty (30) day period beginning on the last day of the Extension described in
Section 3.7.
Section 5. Method of Exercise. Executive may exercise this Option in whole or
in part (before the date this option expires) on any normal business day of the
Company by delivering written notice to the Company at its principal place of
business of her intent to exercise this Option and the number of shares she
intends to purchase pursuant to such exercise and simultaneously paying to the
Company the Option Price. The maximum number of shares of Stock which may be
purchased by exercise of this Option on any such day shall equal the excess, if
any, of A over B where
A = the total number of vested shares of Stock subject to this
Option on such date, as adjusted in accordance with Section
7, and
B = the number of shares of Stock which have previously been
purchased by exercise of this Option, as adjusted in a manner
consistent with Section 7.
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Payment of the Option Price shall be made either in cash or by check acceptable
to the Company.
The Executive may elect to borrow the exercise price from the Company on an
interest-free basis for a term not to exceed thirty-six (36) months by
delivering written notice of her election to so borrow the exercise price to
the Company at least fifteen (15) days before the date of exercise. Executive
shall execute a promissory note to the Company in the principal amount of the
exercise price for the portion of the Option to be exercised. For federal
income tax purposes, interest shall accrue on such principal amount at the
minimum interest required to be accrued on such note under the Internal Revenue
Code.
Section 6. Delivery. The Company's delivery of Stock pursuant to the exercise
of this Option shall discharge the Company of all of its duties and
responsibilities with respect to the portion of this Option exercised other
than the obligations described in Section 10.
Section 7. Adjustment of Shares and Option Price. The number of Shares of
Stock subject to this Option and the Option Price shall be adjusted by the
Company in an equitable manner to reflect any change in the capitalization of
the Company, including an event described in Section 3.4(b). If any adjustment
under this Section 7 would create a fractional share of Stock or a right to
acquire a fractional share of Stock, such fractional share shall be disregarded
by rounding all fractions downward.
Section 8. Nontransferable. No rights granted under this Option shall be
transferable by Executive, and such rights shall be exercisable during
Executive's lifetime only by Executive. To the extent this Option is
exercisable after the death of Executive, the personal representative of
Executive's estate shall be treated as the Executive under this Agreement.
Section 9. Dissolution or Liquidation; Reorganization. In the event of
the dissolution or liquidation of the Company, this Option to the extent then
outstanding and unexercised shall terminate as of a future date to be fixed by
the Board of Directors of the Company.
In the event of a Reorganization, the Board of Directors shall adjust, change,
convert or exchange the then outstanding and unexercised portion of this Option
for cash or other property or securities of the surviving corporation in a
manner not inconsistent with the provisions of the plan or agreement with
respect to the Reorganization for the adjustment, change, conversion, or
exchange of such options and shares for cash or other property or securities of
the surviving corporation.
The term "Reorganization" as used in this Section 9 shall mean any
reorganization, merger, consolidation, share exchange, or other business
combination pursuant to which neither the Company nor a
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<PAGE> 9
subsidiary of the Company is the surviving parent corporation after the
effective date of the Reorganization, or any sale or lease of all or
substantially all of the assets of the Company. Nothing herein shall require
the Company to adopt a Reorganization Agreement, or to make provision for the
adjustment, change, conversion, or exchange of the then outstanding and
unexercised portion of this option in any Reorganization Agreement which it
does adopt.
Section 10. Registration of Shares. The Company shall file and maintain the
effectiveness of a registration statement (on a Form S-8 or any other form used
for registering shares issued to employees) with the Securities and Exchange
Commission with respect to the shares of Stock received upon exercise of this
Option and such registration statement shall include a resale prospectus
covering such shares.
Section 11. Tax Withholding. Before the Company issues any shares to
Executive pursuant to the exercise of this option, Executive shall make such
provision, or furnish the Company and its subsidiaries such authorization, as
the Company in its sole discretion determines to be necessary or desirable so
that the Company and its subsidiaries may satisfy their obligations under
applicable tax laws to withhold for income or other taxes due upon, incident
to, or in respect of such exercise or a later lapsing of time or restrictions
on or disposition of the shares received upon such exercise.
Section 12. Continued Employment. This Option shall not confer upon
Executive any right to continued employment with the Company, nor shall it
interfere in any way with the right of the Company to terminate the employment
of Executive at any time.
Section 13. Stockholder Status. Neither Executive nor any legal
representative of Executive shall have any rights as a stockholder with respect
to any shares of Stock under this Option until such shares have been duly
issued and delivered to Executive or such legal representative, and no
adjustment shall be made for dividends of any kind or description whatsoever or
for distributions of other rights of any kind or description whatsoever
respecting such Stock before the date this Option is exercised with respect to
such shares.
Section 14. Other Laws. The Company shall have the right to refuse to issue
or transfer any Stock under this Option if the Company reasonably determines
that the issuance or transfer of such Stock might violate any applicable law or
regulation, and any payment tendered in such event to exercise this option
shall be promptly refunded to Executive.
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Section 15. Other Conditions. In the event that the Executive resigns or is
terminated, with or without Cause, the Executive agrees for the twelve (12)
month period ("Restricted Period") thereafter
(a) to be bound by the volume and timing restrictions for sales by
"affiliates" under Rule 144 promulgated under the Securities Act of
1933, as amended, which restrictions are hereby expressly incorporated
by reference, and
(b) further, that she will not sell shares of Stock on any day of
the Restricted Period in excess of twice the number of shares she
could sell during the three (3) month period ending on such day as
determined under (a) above divided by the number of trading days
during such three (3) month period.
Section 16. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by the laws of the State of Delaware and the jurisdiction and venue of
any suit, action, or other proceeding relating to this Agreement shall be in
the appropriate court of the State oil Delaware and the United States District
Court for the District of Delaware. Any process or notice in connection with
such suit, action or other proceeding may be served by certified or registered
mail or personal service within or without the State of Delaware, provided a
reasonable time for appearance is allowed.
Section 17. Modification, Amendment, and Cancellation. This Agreement may be
modified, amended, or canceled as of any date only in writing agreed to by the
parties.
Section 18. Binding Effect. This Agreement shall be binding upon the Company
and Executive and their respective directors, officers, employees, heirs,
executors, administrators and successors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
GEOWASTE INCORPORATED
By: Fredrick J. Iseman
-----------------------------------
Title: Director
Amy C. MacF. Burbott
---------------------------------------
Amy C. MacF. Burbott
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<PAGE> 1
EXHIBIT 99(c)
GEOWASTE INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
This Option Agreement ("Agreement") is made by and between GeoWaste
Incorporated, a Delaware Corporation, formerly Utah Shale Land & Minerals
Corporation ("Company") and Raymond F. Chase, residing at 55 Scott Street,
Pawtucket, Rhode Island 02860 ("Executive").
W I T N E S S E T H:
WHEREAS, the Company granted to Executive on July 3, 1991 certain options to
purchase stock in the Company in consideration of certain services performed by
Executive for the Company prior to August 1, 1991 and in connection with his
employment as Treasurer of the Company from August 1, 1991; and
WHEREAS, the Company and the Executive desire to memorialize the terms and
conditions of such option grant in this Agreement;
NOW, THEREFORE, for and in consideration of mutual premises and covenants
contained herein, the parties agree as follows:
Section 1. Grant. Subject to all the terms and conditions of this Agreement,
the Company hereby grants to Executive a non-qualified stock option ("Option")
to purchase from the Company 75,000 shares of GeoWaste Incorporated Common
Stock, par value $.10 per share "Stock" ) at an option price of $0.50 per share
("Option Price").
Section 2. Effective Date. This Option is granted effective as of July 3,
1991.
Section 3. Vesting.
3.1 General. Executive shall be fully vested in the Option and this Option
shall be immediately exercisable to the extent of 15,000 shares (or such other
number as may result from an adjustment under Section 7). The Executive's
vested interest in the remaining 60,000 shares (or such other number as may
result from an adjustment under Section 7) granted under this Option
("Nonvested Shares") as of any date shall equal the lesser of A, B, and C
below, where
A = the number of shares of Stock which become available as a result of
the Company's satisfaction of the Performance Target Ratchets
described in Section 3.3 on or before such date;
B = the product of 1428.57 and his number of full calendar months of
employment with the Company or its subsidiaries from August 1, 1991
through such date unless Executive has been continuously employed with
the Company or its subsidiaries from August 1, 1991 through January
31, 1995, in which event, B shall equal 60,000; and
C = the number of shares of Stock which have been released from escrow
under the Reorganization Plan.
<PAGE> 2
For example, if the Company satisfies the Third Ratchet by July 31, 1993, A
above would equal 45,000 shares and B above would equal 34,285.68 (24 months of
employment x 1428.57). Assuming C is greater than 34,285.68, Executive would be
vested in 49,285.68 shares as of July 31, 1993 - 15,000 of which were vested as
of grant date and 34,285.68 of which became vested as a result of his service
and satisfaction of the Ratchets.
The Executive shall forfeit his rights to purchase such shares (1) to the
extent the Company fails to meet the Performance Target Ratchets on or before
the Final Valuation Date and Nonvested Ratchet Shares are not released under
Section 3.5 or Section 3.6 or (2) except as provided in Section 3.6 or
Section 3.7, to the extent Executive terminates employment with the Company or
its subsidiaries before January 31, 1995.
3.2 Definitions. For purposes of this Agreement, the following capitalized
terms shall have the following meanings:
(a) Average Trading Price - means as of any Valuation Date the arithmetic
average of the Closing Price of Stock on each day during the relevant Valuation
Period.
(b) Cause - means (i) Executive uses for personal gain or discloses to
unauthorized persons any confidential or proprietary information or trade
secrets of the Company or its subsidiaries; (ii) Executive's conduct
potentially violates any applicable civil or criminal law or violates any
written rules of ethical corporate conduct for officers and employees of the
Company or its subsidiaries; (iii) Executive breaches any agreement with or
violates any fiduciary obligation to the Company or its subsidiaries; or (iv)
the Committee in its absolute discretion determines that Executive's
termination is for reasons that are adverse to the Company.
(c) Closing Price - means (i) the closing bid price of the Stock quoted by
NASDAQ or, (ii) if the Stock is not then traded on the NASDAQ System, the
closing price of the shares of Stock reported by the national securities
exchange on which the shares are traded, and (iii) if the shares of Stock are
not traded on any such national exchange, the appraised fair market value per
share of the outstanding shares of Stock, determined by an independent
investment banker reasonably acceptable to the Company and Frederick J. Iseman.
(d) Equity Sale - means any issuance or sale by the Company of shares of Stock
to any Person after August 2, 1991, including, without limitation, shares
issuable as full or partial consideration for any acquisition of the assets or
stock of another entity by the Company or any of its subsidiaries which shares
must be issued and outstanding and may not be subject to any contingency
whatsoever (e.g., an "earn-out" formula or other contingent purchase price
mechanism), but an Equity Sale shall not include: (i) shares issued
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<PAGE> 3
pursuant to any employee stock option or incentive stock option plan (whether
qualified or nonqualified) or employee stock ownership plan; (ii) shares issued
pursuant to the exercise of those certain warrants granted to Allen & Company
Incorporated ("Allen") pursuant to that certain Warrant Agreement between Allen
and the Company dated August 2, 1991; (iii) shares issuable in accordance with
the terms of the Reorganization Plan or pursuant to the related exchange
agreements between the Company and certain former debtholders of Equivest Waste
Solutions, Inc. or to certain investors pursuant to the private placement
described in the Reorganization Plan on November 25, 1991 or (iv) shares
issuable by virtue of any subdivision (by stock split, stock dividend or
otherwise) of the outstanding shares of Stock (as described in Section 3.4(b)
below).
(e) Final Valuation Date - means the last day in the Valuation Period ending
July 31, 1994 in which the NASDAQ over-the-counter market is open for trading
or such later date as may result from an amendment of the Reorganization Plan
delaying the final release of shares under the escrow arrangement.
(f) Liquidation Event - means (i) the sale by the Company of all of its assets
and/or the assets of its subsidiaries, taken as a whole, whether or not there
is a subsequent dissolution of the Company and liquidation of its assets, (ii)
the merger or consolidation of the Company with and into a third Person which
third Person is the surviving corporation, or (iii) the dissolution and
liquidation of the Company.
(g) Liquidation Value - means (i) with respect to an asset sale described in
Section 3.2(f)(i), the amount of the net proceeds from such asset sale which
are available for distribution with respect to each share of Stock; (ii) with
respect to a merger or consolidation described in Section 3.2(f)(ii), the
value of any cash (or cash equivalent) consideration for each share of Stock
exchanged in such merger or consolidation plus the stated value (or if no
stated value, then the fair market value, as determined by independent third
party valuation consultants chosen by the Company) of non-cash consideration
received in exchange for each share of Stock as a consequence of such merger or
consolidation; and (iii) with respect to a dissolution or liquidation described
in Section 3.2(f)(iii), the value of the liquidating distribution for each
share of Stock determined by the Company's Board of Directors and approved by
holders of Stock.
(h) Performance Period - means the period beginning February 1, 1992 and ending
July 31, 1994 or such later date as may result from an extension of the
"valuation periods" under the Reorganization Plan.
(i) Person - means any individual, corporation, partnership, association, trust
or any unincorporated organization or any unit or subdivision of government.
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<PAGE> 4
(j) Reorganization Plan - means the Agreement and Plan of Reorganization dated
August 2, 1991.
(k) Valuation Date - means the last day in any Valuation Period in which the
NASDAQ over-the-counter market is open for trading.
(l) Valuation Period - means each three consecutive month period commencing
February 1, 1992 and ending each April 30, July 31, October 31 and January 31
thereafter within the Performance Period.
3.3 Performance Target Ratchets. Except in the case of the Final Valuation Date
or a Liquidation Event, 15,000 of the Nonvested Shares (or such other number as
may result from an adjustment under Section 7) shall become available on each
of four Valuation Dates in the Performance Period provided the Average Trading
Price of the Stock on each such Valuation Date is not less than Average Trading
Price opposite the applicable Performance Target Ratchet for such Valuation
Date described below:
Performance Target Ratchet Average Trading Price
[S] [C]
First Ratchet $1.116
Second Ratchet $1.655
Third Ratchet $2.188
Fourth Ratchet $2.715
Except with respect to the Final Valuation Date, no more than one Ratchet shall
be deemed to have been satisfied on any Valuation Date and the Ratchets must be
satisfied in chronological order. For example, if the Average Trading Price for
the Stock is $2.188 on the first Valuation Date in the Performance Period, the
First Ratchet will have been satisfied and 15,000 of the Nonvested Shares shall
become available. The Average Trading Price must reach at least $1.655 on a
subsequent Valuation Date in order for additional Nonvested Shares to become
available. The Average Trading Prices set forth above shall be subject to
adjustment as provided in Section 3.4.
3.4 Adjustments to Performance Target Ratchets. The Average
Trading Prices opposite the Performance Target Ratchets described
in Section 3.3 above shall be adjusted in the event of an Equity Sale or
in the event of a subdivision of the Stock.
(a) Equity Sale. If the Company completes an Equity Sale during the Performance
Period, the Average Trading Prices set forth opposite the Performance Target
Ratchets in Section 3.3 shall be adjusted downward to account for the dilution
created by the increase in the number of issued and outstanding shares of
Stock. The adjusted Average Trading Price as of any Valuation Date following
any Equity Sale shall be equal to:
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<PAGE> 5
A + 2,000,000 + B
-----------------
A + B x C where
A = the number of shares of Stock issued and outstanding as of the
applicable Valuation Date, exclusive of the shares sold pursuant to
the Equity Sale and exclusive of any shares of Stock which are then
deposited in either the first or second escrow pursuant to the
Reorganization Plan;
B = the number of shares of Stock issued pursuant to the Equity Sale; and
C = (i) $1.00, if the First Ratchet has not been satisfied as of such
Valuation Date;
(ii) $1.50, if the First Ratchet has been satisfied as of such
Valuation Date, but the Second Ratchet has not been satisfied;
(iii) $2.00, if the First and Second Ratchets have been satisfied as
of such Valuation Date, but the Third Ratchet has not been
satisfied, or
(iv) $2.50, if the First, Second and Third Ratchets have
been satisfied as of such Valuation Date, but the Fourth
Ratchet has not been satisfied.
(b) Subdivision/Combination. If the Company at anytime subdivides (by any stock
split, stock dividend or otherwise) the outstanding shares of Stock into a
greater number of shares, the Average Trading Prices opposite the Performance
Target Ratchets in Section 3.3 shall be proportionately reduced, and if the
Company at anytime combines (by reverse stock split or otherwise) the
outstanding shares of Stock into a smaller number of shares, Average Trading
Prices opposite the Performance Target Ratchets in Section 3.3 shall be
proportionately increased.
3.5 Final Valuation Date. Notwithstanding the foregoing, if the Average Trading
Price on the Final Valuation Date falls between any of the release points in
the Reorganization Plan, then Nonvested Shares described in Section 3.1(b)
shall become available on August 15, 1994 equal to the difference between A and
B, where
A = 60,000* x Average Trading Price as of Final Valuation Date
----------------------------------------------------------
$2.715
B = the number of Nonvested Shares which have previously become
available during the Performance Period.
* This number shall be adjusted to reflect any adjustment under Section 7
which occurs before August 15, 1994.
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<PAGE> 6
3.6 Change in Control.
(a) Liquidation Event. Notwithstanding the foregoing, if there is a Liquidation
Event while Executive is employed with the Company or its subsidiaries and the
Liquidation Value of a share of Stock is at least $1.116, then the Executive
shall be fully vested in that portion of the Nonvested Shares equal to the
difference between A and B below without regard to his length of employment
with the Company
A = 60,000* x Liquidation Value
---------------------------
$2.715
B = the number of shares of Stock which became available under
this Agreement prior to such Liquidation Event.
* This number shall be adjusted to reflect any adjustment under Section 7
which occurs before the Liquidation Event.
(b) Other Change in Control. If Executive is employed with the Company or its
subsidiaries upon the occurrence of any of the following events:
(i) any capital reorganization, reclassification, consolidation or
merger, or any sale, issuance or other transfer or series of related
sales, or issuances and/or other transfers of Stock or any other
capital stock of the Company having the right to vote in elections for
the Board, which results in any person or group of affiliated persons
owning of record and/or beneficially, or having the right to vote,
capital stock of the Company having the right to elect a majority of
the Board; or
(ii) any sale, lease or other conveyance of assets by the Company and
its subsidiaries which results in any person or group of affiliated
persons other than the Company owning, leasing or otherwise holding
(i) all or substantially all of the assets of the Company or (ii) all
or substantially all of the assets of the Company other than the
capital stock of the Company's subsidiaries, and all or substantially
all of the assets of the Company's subsidiaries;
then Executive shall be fully vested in this Option without regard to his
length of employment to the extent that shares of Stock have been or will be
released from escrow under the Reorganization Plan as a result of such event.
3.7 Termination of Employment. If Executive's employment with the Company
is terminated for any reason whatsoever, including death or permanent
disability, before this Option is fully vested, any portion of this Option
which is not vested on the date Executive
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<PAGE> 7
terminates his employment shall be automatically forfeited as of his employment
termination date.
Section 4. Duration of Option. This Option shall expire immediately and
automatically on the earlier of
(a) the date the option is exercised in full;
(b) the time that the Company's principal place of business closes on
July 2, 2001 (or which would have been the normal closing time if July
2, 2001 were a normal business day);
(c) the end of the sixty (60) day period which begins on the date
Executive's employment by the Company terminates for death or
permanent disability;
(d) the end of the thirty (30) day period which begins on the date the
Executive resigns or his employment is terminated by the Company
(without Cause); or
(e) the date Executive's employment is terminated with Cause
provided, however, that in the event Executive's employment is terminated
without Cause before the Final Valuation Date, this Option, to the extent
vested and exercisable on the date his employment so terminates, shall expire
at the end of the thirty (30) day period which begins on the date his
employment so terminates and the remainder of the Option shall expire at the
end of the thirty (30) day period beginning on the last day of the Extension
described in Section 3.7.
Section 5. Method of Exercise. Executive may exercise this Option in whole or
in part (before the date this Option expires) on any normal business day of the
Company by delivering written notice to the Company at its principal place of
business of his intent to exercise this option and the number of whole shares
he intends to purchase pursuant to such exercise and simultaneously paying to
the Company the Option Price. This Option may be exercised in whole shares
only. Accordingly, any fractional share created under the vesting schedule
described in Section 3.1(B) shall be disregarded and rounded downward to the
next whole share of stock. The maximum number of shares of Stock which may be
purchased by exercise of this Option on any such day shall equal the excess, if
any, of A over B where
A = the total number of vested whole shares of Stock subjectto
this Option on such date, as adjusted in accordance with
Section 7, and
B = the number of whole shares of Stock which have previously been
purchased by exercise of this Option, as adjusted in a manner
consistent with Section 7.
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<PAGE> 8
Payment of the Option Price shall be made either in cash or by check acceptable
to the Company.
Section 6. Delivery. The Company's delivery of Stock pursuant to the exercise
of this Option shall discharge the Company of all of its duties and
responsibilities with respect to the portion of this Option exercised other
than the obligations described in Section 10.
Section 7. Adjustment of Shares and Option Price. The number of Shares of
Stock subject to this Option and the option Price shall be adjusted by the
Committee in an equitable manner to reflect any change in the capitalization of
the Company, including an event described in Section 3.4(b). If any adjustment
under this Section 7 would create a fractional share of Stock or a right to
acquire a fractional share of Stock, such fractional share shall be disregarded
by rounding all fractions downward.
Section 8. Nontransferable. No rights granted under this Option shall be
transferable by Executive, and such rights shall be exercisable during
Executive's lifetime only by Executive or, to the extent this Option is
exercisable after the Executive is permanently disabled, by the Executive's
legal representative. To the extent this Option is exercisable after the death
of Executive, the personal representative of Executive's estate shall be
treated as the Executive under this Agreement.
Section 9. Dissolution or Liquidation; Reorganization. In the event of the
dissolution or liquidation of the Company, this Option to the extent then
outstanding and unexercised shall terminate as of a future date to be fixed by
the Board of Directors of the Company.
In the event of a Reorganization, the Board of Directors shall adjust, change,
convert or exchange the then outstanding and unexercised portion of this Option
for cash or other property or securities of the surviving corporation in a
manner not inconsistent with the provisions of the plan or agreement with
respect to the Reorganization for the adjustment, change, conversion, or
exchange of such options and shares for cash or other property or securities of
the surviving corporation.
The term "Reorganization" as used in this Section 9 shall mean any
reorganization, merger, consolidation, share exchange, or other business
combination pursuant to which neither the Company nor a subsidiary of the
Company is the surviving parent corporation after the effective date of the
Reorganization, or any sale or lease of all or substantially all of the assets
of the Company. Nothing herein shall require the Company to adopt a
Reorganization Agreement, or to make provision for the adjustment, change,
conversion, or exchange of the then outstanding and unexercised portion of this
Option in any Reorganization Agreement which it does adopt.
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<PAGE> 9
Section 10. Tax Withholding. Before the Company issues any shares to Executive
pursuant to the exercise of this Option, Executive shall make such provision,
or furnish the Company and its subsidiaries such authorization, as the Company
in its sole discretion determines to be necessary or desirable so that the
Company and its subsidiaries may satisfy their obligations under applicable tax
laws to withhold for income or other taxes due upon, incident to, or in respect
of such exercise or a later lapsing of time or restrictions on or disposition
of the shares received upon such exercise.
Section 11. Continued Employment. This Option shall not confer upon Executive
any right to continued employment with the Company, nor shall it interfere in
any way with the right of the Company to terminate the employment of Executive
at any time.
Section 12. Stockholder Status. Neither Executive nor any legal representative
of Executive shall have any rights as a stockholder with respect to any shares
of Stock under this Option until such shares have been duly issued and
delivered to Executive or such legal representative, and no adjustment shall be
made for dividends of any kind or description whatsoever or for distributions
of other rights of any kind or description whatsoever respecting such Stock
before the date this Option is exercised with respect to such shares.
Section 13. Other Laws. The Company shall have the right to refuse to issue or
transfer any Stock under this Option if the Company reasonably determines that
the issuance or transfer of such Stock might violate any applicable law or
regulation, and any payment tendered in such event to exercise this option
shall be promptly refunded to Executive.
Section 14. Other Conditions. In the event that the Executive resigns or is
terminated, with or without Cause, the Executive agrees for the twelve (12)
month period ("Restricted Period") thereafter
(a) to be bound by the volume and timing restrictions for sales by
"affiliates" under Rule 144 promulgated under the Securities Act of
1933, as amended, which restrictions are hereby expressly incorporated
by reference, and
(b) further, that he will not sell shares of Stock on any day of the
Restricted Period in excess of twice the number of shares he could
sell during the three (3) month period ending on such day as
determined under (a) above divided by the number of trading days
during such three (3) month period.
Section 15. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by the laws of the State of Delaware and the jurisdiction and venue of
any suit, action, or other proceeding relating to this Agreement shall be in
the appropriate court of the State of Delaware and the United States District
Court for the District of Delaware.
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<PAGE> 10
Any process or notice in connection with such suit, action or other proceeding
may be served by certified or registered mail or personal service within or
without the State of Delaware, provided a reasonable time for appearance is
allowed.
Section 16. Modification, Amendment, and Cancellation. This Agreement may be
modified, amended, or canceled as of any date only in writing by the parties.
Section 17. Binding Effect. This Agreement shall be binding upon the Company
and Executive and their respective directors, officers, employees, heirs,
executors, administrators and successors.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
GEOWASTE INCORPORATED
By: Amy C. MacF. Burbott
--------------------
Title: President
-----------------
Raymond F. Chase
------------------------
RAYMOND F. CHASE
10
<PAGE> 1
EXHIBIT 99(d)
GEOWASTE INCORPORATED
NON-QUALIFIED STOCK OPTION AGREEMENT
This option Agreement ("Agreement") is made by and between GeoWaste
Incorporated, a Delaware Corporation, formerly Utah Shale Land & Minerals
Corporation ("Company") and Harve A. Ferrill, residing at 1615 Sheridan Road,
Apartment 8E, Wilmette, Illinois 60091 ("Director").
W I T N E S S E T H:
WHEREAS, the Company granted to Director on July 1, 1991 certain options to
purchase stock in the Company in connection with his service as Chairman of the
Board of the Company from July 1991; and
WHEREAS, the Company and the Director desire to memorialize the terms and
conditions of such option grant in this Agreement;
NOW, THEREFORE, for and in consideration of mutual premises and covenants
contained herein, the parties agree as follows:
Section 1. Grant. Subject to all the terms and conditions of this Agreement,
the Company hereby grants to Director a non-qualified stock option ("Option")
to purchase from the Company 250,000 shares of GeoWaste Incorporated Common
Stock, par value $.10 per share ("Stock") at an option price of $0.50 per share
("Option price").
Section 2. Effective Date. This Option is granted effective as of July
1, 1991.
Section 3. Vesting.
3.1 General. Director shall be fully vested in the Option and this Option
shall be immediately exercisable to the extent of 50,000 shares (or such other
number as may result from an adjustment under Section 7). The Director's
vested interest in the remaining 200,000 shares (or such other number as may
result from an adjustment under Section 7) granted under this option
("Nonvested Shares") as of any date shall equal the lesser of A, B, and C
below, where
A = the number: of shares of Stock which become available as a
result of the Company's satisfaction of the Performance Target
Ratchets described in Section 3.3 on or before such date;
[B = the product of 4,761.91 and his number of full calendar months
of service as a director of the Company from August 1, 1991
through such date;] and
C = the number of shares of Stock which have been released from
escrow under the Reorganization Plan.
<PAGE> 2
For example, if the Company satisfies the Third Ratchet by July 31, 1993, A
above would equal 150,000 shares and B above would equal 114,285.84 (24 months
of employment x 4,761.91). Assuming C is greater than 114,285,84, Director
would be vested in 164,285.84 shares as of July 31, 1993 - 50,000 of which were
vested at grant and 114,285.84 of which became vested as a result of his
service and satisfaction of the Ratchets.
The Director shall forfeit his rights to purchase such shares (1) to the extent
the Company fails to meet the Performance Target Ratchets on or before the
Final Valuation Date and Nonvested Ratchet Shares are not released under
Section 3.5 or Section 3.6 or (2) except as provided in Section 3.6 or
Section 3.7, to the extent Director terminates service as a Director before
January 31, 1995.
3.2 Definitions. For purposes of this Section 3, the following
capitalized terms shall have the following meanings:
(a) Average Trading Price - means as of any Valuation Date the arithmetic
average of the Closing Price of Stock on each day during the relevant Valuation
Period.
(b) Closing Price - means (i) the closing bid price of the Stock quoted by
NASDAQ or, (ii) if the Stock is not then traded on the NASDAQ System, the
closing price of the shares of Stock reported by the national securities
exchange on which the shares are traded, and (iii) if the shares of Stock are
not traded on any such national exchange, the appraised fair market value per
share of the outstanding shares of Stock, determined by an independent
investment banker reasonably acceptable to the Company and Frederick J. Iseman.
(c) Equity Sale - means any issuance or sale by the Company of shares of
Stock to any Person after August 2, 1991, including, without limitation, shares
issuable as full or partial consideration for any acquisition of the assets or
stock of another entity by the Company or any of its subsidiaries which shares
must be issued and outstanding and may not be subject to any contingency
whatsoever (e.g., an "earn-out" formula or other contingent purchase price
mechanism), but an Equity Sale shall not include: (i) shares issued pursuant to
any employee stock option or incentive stock option plan (whether qualified or
nonqualified) employee stock ownership plan; (ii) shares issued pursuant to the
exercise of those certain warrants granted to Allen & Company Incorporated
("Allen") pursuant to that certain warrant Agreement between Allen and the
Company dated August 2, 1991; (iii) shares issuable in accordance with the
terms of the Reorganization Plan or pursuant to the related exchange agreements
between the Company and certain former debtholders of Equivest Waste Solutions,
Inc. or to certain investors pursuant to the private placement described in the
Reorganization Plan on November 25, 1991 or (iv) shares issuable by virtue of
any subdivision (by stock split,
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<PAGE> 3
stock dividend or otherwise) of the outstanding Shares of Stock (as described
in Section 3.4(b) below).
(d) Final Valuation Date - means the last day in the Valuation Period
ending July 31, 1994 in which the NASDAQ over-the-counter market is open for
trading or such later date as may result from an amendment of the
Reorganization Plan delaying the final release of shares under the escrow
arrangement.
(e) Liquidation Event - means (i) the sale by the company of all of its
assets and/or the assets of its subsidiaries, taken as a whole, whether or not
there is a subsequent dissolution of the Company and liquidation of its assets,
(ii) the merger or consolidation of the Company with and into a third Person
which third Person is the surviving corporation, or (iii) the dissolution and
liquidation of the Company.
(f) Liquidation Value - means (i) with respect to an asset sale described
in Section 3.2(e)(i), the amount of the net proceeds from such asset sale
which are available for distribution with respect to each share of Stock; (ii)
with respect to a merger or consolidation described in Section 3.2(e)(ii), the
value of any cash (or cash equivalent) consideration for each share of Stock
exchanged in such merger or consolidation plus the stated value (or if no
stated value, then the fair market value, as determined by independent third
party valuation consultants chosen by the Company) of non-cash consideration
received in exchange for each share of Stock as a consequence of such merger or
consolidation; and (iii) with respect to a dissolution or liquidation described
in Section 3.2(e)(iii), the value of the liquidating distribution for each
share of Stock determined by the Company's Board of Directors and approved by
holders of Stock.
(g) Performance Period - means the period beginning February 1, 1992 and
ending July 31, 1994 or such later date as may result from an extension of the
"valuation periods" under the Reorganization Plan,
(h) Person - means any individual, corporation, partnership, association,
trust or any unincorporated organization or any unit or subdivision of
government.
(i) Reorganization Plan - means the Agreement and Plan of Reorganization
dated August 2, 1991.
(i) Valuation Date - means the last day in any Valuation Period in which
the NASDAQ over-the-counter market is Open for trading.
(k) Valuation Period - means each three consecutive month period commencing
February 1, 1992 and ending each April 30, July 31, October 31 and January 31
thereafter within the Performance Period.
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<PAGE> 4
3.3 Performance Target Ratchets. Except in the case of the Final
Valuation Date or a Liquidation Event, 50,000 of the Nonvested Shares (or such
other number as may result from an adjustment under Section 7) shall become
available on each of four Valuation Dates in the Performance Period provided
the Average Trading Price of the Stock on each such Valuation Date is not less
than Average Trading Price opposite the applicable Performance Target Ratchet
for such Valuation Date described below:
<TABLE>
<CAPTION>
Performance Target Ratchet Average Trading Price
- -------------------------------------------------------------------------------
<S> <C>
First Ratchet $1.116
Second Ratchet $1.655
Third Ratchet $2.188
Fourth Ratchet $2.715
</TABLE>
Except with respect to the Final Valuation Date, no more than one Ratchet shall
be deemed to have been satisfied on any Valuation Date and the Ratchets must be
satisfied in chronological order. For example, if the Average Trading Price for
the Stock is $2.188 on the first Valuation Date in the Performance Period, the
First Ratchet will have been satisfied and 50,000 of the Nonvested Shares shall
become available. The Average Trading Price must reach at least $1.655 on a
subsequent Valuation Date in order for additional Nonvested Shares to become
available. The Average Trading Prices set forth above shall be subject to
adjustment as provided in Section 3.4.
3.4 Adjustments to Performance Target Ratchets. The Average Trading
Prices opposite the Performance Target Ratchets described in Section 3.3 above
shall be adjusted in the event of an Equity Sale or in the event of a
subdivision of the Stock.
(a) Equity-Sale. If the Company completes an Equity Sale during the
Performance Period, the Average Trading Prices set forth opposite the
Performance Target Ratchets in Section 3.3 shall be adjusted downward to
account for the dilution created by the increase in the number of issued and
outstanding shares of Stock. The adjusted Average Trading Price as of any
Valuation Date following any Equity Sale shall be equal to:
A + 2,000,000 + B
-----------------
A + B x C where
A = the number of shares of Stock issued and outstanding as of the
applicable Valuation Dater exclusive of the shares sold
pursuant to the Equity Sale and exclusive of any shares of
Stock which are then deposited in either the first or second
escrow pursuant to the Reorganization Plan;
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<PAGE> 5
B = the number of shares of Stock issued pursuant to the Equity
Sale; and
C = (i) $1.00, if the First Ratchet has not been
satisfied as of such Valuation Date;
(ii) $1.50, if the First Ratchet has been satisfied
as of such Valuation Date, but the second
Ratchet has not been satisfied;
(iii) $2.00, if the First and Second Ratchets have
been satisfied as of such Valuation Dater but
the Third Ratchet has not been satisfied, or
(iv) $2.50 if the First, Second and Third Ratchets
have been satisfied as of such Valuation Date,
but the Fourth Ratchet has not been satisfied,
(b) Subdivision/Combination. If the Company at anytime subdivides (by any
stock split, stock dividend or otherwise) the outstanding shares of Stock into
a greater number of shares, the Average Trading Prices opposite the Performance
Target Ratchets in Section 3.3 shall be proportionately reduced, and if the
Company at anytime combines (by reverse stock split or otherwise) the
outstanding shares of Stock into a smaller number of shares, Average Trading
Prices opposite the Performance Target Ratchets in Section 3.3 shall be
proportionately increased.
3.5 Final Valuation Date. Notwithstanding the foregoing, if the Average
Trading Price on the Final Valuation Date falls between any of the release
points in the Reorganization Plan, then Nonvested Shares described in Section
3.1(b) shall become available on August 15, 1994 equal to the difference
between A and B, where
200,000* x Average Trading Price as of Final Valuation Date
-----------------------------------------------------------
A = $2.715
B = the number of Nonvested Shares which have previously
become available during the Performance Period.
* This number shall be adjusted to reflect any adjustment under Section 7
which occurs before August 15, 1994.
3.6 Change in Control.
(a) Liquidation Event. Notwithstanding the foregoing, if there is a
Liquidation Event while Director serves as a director of the Company and the
Liquidation Value of a share of stock is at least $1.116, then Director shall
be fully vested in that portion of the Nonvested Shares equal to the difference
between A and B below without regard to his length of employment with the
Company
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<PAGE> 6
200,000* x Liquidation Value
----------------------------
A = $2.715
B = the number of shares of Stock which became available under
this Agreement prior to such Liquidation Event.
* This number shall be adjusted to reflect any adjustment under Section 7
which occurs before the Liquidation Event.
(b) Other Change in Control. If Director is a director of the Company
upon the occurrence of any of the following events:
(i) any capital reorganization, reclassification, consolidation or
merger, or any sale, issuance or other transfer or series of related
sales, or issuances and/or other transfers of Stock or any other
capital stock of the Company having the right to vote in elections for
the Board, which results in any person or group of affiliated persons
owning of record and/or beneficially, or having the right to vote,
capital stock of the Company having the right to elect a majority of
the Board; or
(ii) any sale, lease or other conveyance of assets by the Company and
its subsidiaries, which results in tiny person or group of affiliated
persons other than the Company owning, leasing or otherwise holding
(i) all or substantially all of the assets of the Company or (ii) all
or substantially all of the assets of he Company other than the
capital stock of the Company's subsidiaries, and all or substantially
all of the assets of the Company's subsidiaries;
then Director shall be fully vested in this Option without regard to his length
of service as a director to the extent that shares of Stock have been or will
be released from escrow under the Reorganization Plan as a result of such
event.
3.7 Termination of Employment. If Director terminates his service as a
director of the Company for any reason whatsoever, including death or
permanent disability, before this Option is fully vested, any portion of this
Option which is not vested on the date Director terminates such service shall
be automatically forfeited as of the date his service as a Director terminates.
Section 4. Duration of Option. This Option shall expire immediately and
automatically on the earlier of
(a) the date the option is exercised in full;
(b) the time that the Company's principal place of business closes
on June 30, 2002 (or what would have been the normal closing
time if June 30, 2002 were a normal business day);
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<PAGE> 7
(c) the end of the sixty (60) day period which begins on the date
Director's service as a Director terminates for death or
permanent disability; or
(d) the end of the date the Director resigns or otherwise
terminates his service as a Director for reasons other than
death or disability.
Section 5. Method of Exercise. Director may exercise this option in
whole or in part (before the date this Option expires) on any normal business
day of the Company by delivering written notice to the Company at its principal
place of business of his intent to exercise this Option and the number of
shares he intends to purchase pursuant to such exercise and simultaneously
paying to the Company the Option Price. The maximum number of shares of Stock
which may be purchased by exercise of this Option on any such day shall equal
the excess, if any, of A over B where
A = the total number of vested shares of Stock subject to this
Option on such date, as adjusted in accordance with Section
7, and
B = the number of shares of Stock which have previously been
purchased by exercise of this Option, as adjusted in a manner
consistent with Section 7.
Payment of the Option Price shall be made either in cash or by check acceptable
to the Company.
In the event that the Director's service as a Director terminates, the Company
shall be obligated to make a payment to the Director, in cash, equal to the
product of (A) $0.50 (as adjusted to reflect any adjustment in the option price
under Section 7) and (B) the number of shares of common stock of the Company
purchased by Director pursuant to this Agreement during or within the thirty
(30) day period beginning on the day after his service as a Director
terminates. Such payment shall be made by the Company within sixty (60) days
after the date of such termination. The Company's obligation to make such
payment shall be absolute and unconditional and shall not be affected by any
other provision of this Agreement.
Section 6. Delivery. The Company's delivery of Stock pursuant to the
exercise of this option shall discharge the Company of all of its duties and
responsibilities with respect to the portion of this option exercised other
than the obligation described in Section 10.
Section 7. Adjustment of Shares and Option Price. The number of shares
of stock subject to this Option and the Option Price shall be adjusted by the
Committee in an equitable manner to reflect any change in the capitalization of
the Company, including an event described in Section 3.4(b). If any adjustment
under this Section 7 would create a fractional share of Stock or a right to
acquire a fractional share
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<PAGE> 8
of Stock, such fractional share shall be disregarded by rounding all fractions
downward.
Section 8. Nontransferable. No rights granted under this Option shall be
transferable by Director, and such rights shall be exercisable during
Director's lifetime only by Director or, to the extent this Option is
exercisable after Director is permanently disabled by the Executive's legal
representative. To the extent this option is exercisable after the death of
Director, the personal representative of Director's estate shall be treated as
the Director under this Agreement.
Section 9. Dissolution or Liquidation; Reorganization. In the event of the
dissolution or liquidation of the Company, this Option to the extent then
outstanding and unexercised shall terminate as of a future date to be fixed by
the Board of Directors of the Company.
In the event of a Reorganization, the Board of Directors shall adjust, change,
convert or exchange the then outstanding and unexercised portion of this option
for cash or other property or securities of the surviving corporation in a
manner not inconsistent with the provisions of the plan or agreement with
respect to the Reorganization for the adjustment, change, conversion, or
exchange of such options and shares for cash or other property or securities of
the surviving corporation.
The term "Reorganization" as used in this Section 9 shall mean any
reorganization, merger, consolidation, share exchange, or other business
combination pursuant to which neither the Company nor a subsidiary of the
Company is the surviving parent corporation after the effective date of the
Reorganization, or any sale or lease of all or substantially all of the assets
of the Company. Nothing herein shall require the Company to adopt a
Reorganization Agreement, or to make provision for the adjustment, change,
conversion, or exchange of the then outstanding and unexercised portion of this
Option in any Reorganization Agreement which it does adopt.
Section 10. Tax Withholding. Before the Company issues any shares to
Director pursuant to the exercise of this Option, Director shall make such
provision, or furnish the Company and its subsidiaries such authorization, as
the Company in its sole discretion determines to be necessary or desirable so
that the Company and its subsidiaries may satisfy their obligations under
applicable tax laws to withhold for income or other taxes due upon, incident
to, or in respect of such exercise or a later lapsing of time or restrictions
on or disposition of the shares received upon such exercise.
Section 11. Stockholder Status. Neither Director nor any legal
representative of Director shall have any rights as a stockholder with respect
to any shares of Stock under this option until such shares have been duly
issued and delivered to Director or such legal
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<PAGE> 9
representative, and no adjustment shall be made for dividends of any kind or
description whatsoever or for distributions of other rights of any kind or
description whatsoever respecting such Stock before the date this Option is
exercised with respect to such shares.
Section 12. Other Laws. The Company shall have the right to refuse to issue
or transfer any Stock under this Option if the Company reasonably determines
that the issuance or transfer of such Stock might violate any applicable law or
regulation, and any payment tendered in such event to exercise this Option
shall be promptly refunded to Director.
Section 13. Other Conditions. In the event that the Director resigns or is
terminated, with or without Cause, the Director agrees for the twelve (12)
month period ("Restricted Period") thereafter
(a) to be bound by the volume and timing restrictions for sales by
"affiliates" under Rule 144 promulgated under the Securities Act of
1933, as amended, which restrictions are hereby expressly incorporated
by reference, and
(b) further, that he will not sell shares of Stock on any day of the
Restricted Period in excess of twice the number of shares he could
sell during the three (3) month period ending on such day as
determined under (a) above divided by the number of trading days
during such three (3) month period.
Section 14. Governing Law, Jurisdiction and Venue. This Agreement shall be
governed by the laws of the State of Delaware and the jurisdiction and venue of
any suit, action, or other proceeding relating to this Certificate shall be in
the appropriate court of the State of Delaware and the United States District
Court for the District of Delaware. Any process or notice in connection with
such suit, action or other proceeding may be served by certified or registered
mail or personal service within or without the State of Delaware, provided a
reasonable time for appearance is allowed.
Section 15. Modification, Amendment, and Cancellation. This Agreement may be
modified, amended, or canceled as of any date only in writing by the parties.
Section 16. Binding Effect. This Agreement shall be binding upon the Company
and Director and their respective directors, officers, employees, heirs,
executors, administrators and successors.
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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
GEOWASTE INCORPORATED
By: Amy C. MacF. Burbott
----------------------------
Title: President & CEO
-------------------------
Harve A. Ferrill
--------------------------------
HARVE A. FERRILL
10
