AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WASTE INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
NORTH CAROLINA 56-0954929
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3949 BROWNING PLACE, RALEIGH, NORTH CAROLINA 27609
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(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE NON-QUALIFIED STOCK OPTION PLAN
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1997 STOCK PLAN
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(Full title of the plans)
ROBERT H. HALL
CHIEF FINANCIAL OFFICER, SECRETARY AND TREASURER
WASTE INDUSTRIES, INC.
3949 BROWNING PLACE
RALEIGH, NORTH CAROLINA 27609
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(Name and address of agent for service)
(919) 782-0095
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(Telephone number, including area code, of agent for service)
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Copies to:
Donald R. Reynolds, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNTS TO OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED BE REGISTERED PER SHARE* OFFERING PRICE REGISTRATION FEE
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Common Stock, no par value
<S> <C> <C> <C> <C>
per share 2,326,000 SHARES (1) $19.6875(2) $45,793,125(2) $13,876.70(2)
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(1) INCLUDES 526,000 SHARES RESERVED FOR ISSUANCE UNDER THE EMPLOYEE
NON-QUALIFIED STOCK OPTION PLAN AND 1,800,000 SHARES RESERVED FOR ISSUANCE
UNDER THE 1997 STOCK PLAN.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(C), BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES
FOR THE COMMON STOCK ON THE NASDAQ NATIONAL MARKET SYSTEM ON MARCH 23,
1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by Waste Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's prospectus dated June 13, 1997 filed
pursuant to Rule 424(b)(4) promulgated under the Securities Act of
1933, as amended;
(b) The Company's Quarterly Reports for the quarters ended
June 30 and September 30, 1997, filed pursuant to Section 13 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act");
(c) The Company's Current Reports on Form 8-K filed August 15,
1997 and September 15, 1997, as amended, pursuant to Section 13 of the
Exchange Act; and
(d) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-22417)
filed pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment that indicates that all securities offered under this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be 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 hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the fullest extent permitted
by Section 55-8-30(e) of the North Carolina Business Corporation Act (the
"Business Corporation Act") and (ii) require the Company to indemnify its
directors and officers to the fullest extent permitted by Section 55-8-50
through 55-8-58 of the Business Corporation Act, including circumstances in
which indemnification is otherwise discretionary. Pursuant to Section 55-8-51
and 55-8-57 of the Business Corporation Act, a corporation generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Company believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' duty of care,
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under the Business
Corporation Act. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company, for acts
or omissions that the director believes to be contrary to the best interests of
the Company or its shareholders, for any transaction from which the director
derived an improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Company or its shareholders when the
director was aware or should have been aware of a risk of serious injury to the
Company or its shareholders, for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Company or its shareholders, for improper transactions between the director
and the Company and for improper distributions to shareholders and loans to
directors and officers. These provisions do not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Company's Bylaws require the Company to indemnify its directors and
officers against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) and other amounts actually and reasonably incurred in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interest of the Company and, with respect to any
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The Company's Bylaws also set forth certain procedures that will apply in the
event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
Exhibit Number Description
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5.1 Opinion of Wyrick Robbins Yates & Ponton LLP
10.1* 1997 Stock Plan
10.4 Employee Non-Qualified Stock Option Plan
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Wyrick Robbins Yates & Ponton LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (see page S-1)
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* previously filed.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in
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the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Raleigh, State of North Carolina, on the 24th
day of March 1998.
WASTE INDUSTRIES, INC.
By: /s/ Lonnie C. Poole, Jr.
__________________________
Lonnie C. Poole, Jr.,
Chairman
POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints Lonnie C. Poole, Jr. and Robert H. Hall, and each of
them, his true and lawful attorneys-in-fact and agent, with full power of
substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments and
post-effective amendments to this Form S-8, with exhibits thereto and other
documents in connection therewith, and hereby ratifies and confirms all that
said attorneys-in-fact or his or their substitute or substitutes may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Form S-8 has been signed below by the following persons in the capacities
and on the date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Lonnie C. Poole, Jr. Director, Chairman and Chief Executive March 24, 1998
Officer (Principal Executive Officer)
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Lonnie C. Poole, Jr.
Director, Vice President, Chief Financial March 24, 1998
Officer and Treasurer (Principal
/s/ Robert H. Hall Financial and Accounting Officer)
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Robert H. Hall
/s/ Jim W. Perry Director March 24, 1998
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Jim W. Perry
Director
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J. Gregory Poole, Jr.
/s/ Thomas F. Darden, II
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Thomas F. Darden, II Director March 24, 1998
</TABLE>
S-1
EXHIBIT 5.1
WYRICK ROBBINS YATES & PONTON LLP
Attorneys at Law
The Summit
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607-7506
March 25, 1998
Waste Industries, Inc.
3949 Browning Place
Raleigh, North Carolina 27609
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 filed by Waste
Industries, Inc., a North Carolina corporation (the "Company"), with the
Securities and Exchange Commission on or about the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 2,326,000 shares of the Company's Common
Stock, no par value per share (the "Shares"). We understand that the Shares are
to be issued pursuant to the Company's Employee Non-Qualified Stock Option Plan
and its 1997 Stock Plan. In our examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity with the original of all documents submitted to us as copies
thereof.
As your legal counsel, we have examined the proceedings taken, and are
familiar with the proceedings proposed to be taken, by you in connection with
the sale and issuance of the Shares.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, the Shares, when issued in the manner referred to in the Registration
Statement and in accordance with the resolutions adopted by the Board of
Directors of the Company, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus relating thereto, and any
amendments thereto.
Very truly yours,
WYRICK ROBBINS YATES & PONTON LLP
Exhibit 10.4
WASTE INDUSTRIES, INC.
EMPLOYEE NON-QUALIFIED STOCK OPTION PLAN
The Waste Industries, Inc. Employee Non-Qualified Stock Option Plan
(the "Plan") is intended to provide a method whereby key executive employees of
Waste Industries, Inc. (the "Company"), who are largely responsible for the
management, growth, and success of the Company, may be offered incentives in
addition to those of current compensation, and may be encouraged by personal
involvement in the fortunes of the Company to continue in its service, thereby
advancing the interests of the Company and its stockholders. To such end, the
Company shall from time to time grant to such employees selected in the manner
herein provided options to purchase common stock of the Company on the terms and
conditions hereafter set forth.
ARTICLE I
Administration of the Plan
The Plan shall be administered by the Board of Directors of the
Company. The Board of Directors are authorized to interpret the Plan, to adopt
such rules and regulations for carrying out the Plan as it may deem advisable,
and to make all other determinations necessary or advisable for the
administration of the Plan. The Board's interpretations, determinations, and
decisions relating to the Plan shall be final, conclusive, and binding upon the
Company. The Plan shall be administered in a manner so that options granted
thereunder will be "non-qualified stock options" described in Treas. Reg. ss.
1.83-7, to which Section 421 of the Internal Revenue Code of 1986, as now in
effect or hereafter amended, does not apply.
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ARTICLE II
Stock Subject to the Plan
(1) Subject to the provisions of paragraph (3) of this Article II, the
number of shares of common stock that may be the subject of options granted
under the Plan shall be determined from time to time by the Board of Directors
of the Company, but shall not exceed in the aggregate One Million Nine Hundred
Forty-Two Thousand Nine Hundred Seventy Two (1,942,972) shares.
(2) Shares issued to employees who have exercised an option granted
under the Plan shall be subject to such terms, conditions, and restrictions as
the Board of Directors in its discretion may provide at the time of the grant of
the respective option.
(3) If the issued and outstanding shares of the common stock of the
Company are hereafter increased or decreased or exchanged for a different number
or kind of shares or other securities of the Company or of another corporation,
by reason of reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares, or dividend payable in
corporate shares, the Board of Directors of the Company shall make appropriate
adjustment in the number and kind of shares with respect to which options
outstanding under the Plan shall be exercisable, to the end that each optionee's
proportionate potential interest in the common stock of the Company shall be
maintained as before the occurrence of such event, and appropriate adjustment
shall be made by the Board in the number and kind of shares that are the subject
of options thereafter granted under the Plan. Such adjustment with respect to
outstanding options shall be made without change in the total price provided in
the respective option, but with a corresponding adjustment in the price for each
share or other unit of any security covered by the
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option. No fractional shares shall be issued under the Plan on account of any
adjustment specified above. In lieu of fractional shares, the Board shall make
such adjustment as it deems fair and equitable.
ARTICLE III
Issuance of Stock Under the Plan
Upon the exercise of an option granted under the Plan and the payment
of the purchase price required therein, the Company shall cause a certificate or
certificates for the shares of the common stock subject thereto to be issued in
the name of the optionee and delivered to him.
ARTICLE IV
Eligibility of Employees
(1) Stock options may be granted under the Plan only to persons who are
key executive employees of the Company. For purposes of the Plan, the term "key
executive employees" shall be defined as the officers of the Company and those
employees of the Company deemed by the Board of Directors to be responsible for
the management, growth, and success of the Company. Stock options may be granted
to the same employee under the Plan on more than one occasion.
(2) Subject to the terms, provisions, and conditions of the Plan, the
Board of Directors of the Company shall have sole authority to select the
employees to whom stock options shall be granted thereunder, to determine the
number of shares of common stock subject to such options, to determine the price
to be paid by the optionees for the shares of common stock subject to such
options, and to determine the time or times when stock options shall be granted.
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ARTICLE V
Restriction on Sale or Disposition of Options
Options granted under the Plan shall not be sold, transferred, pledged,
hypothecated, or otherwise disposed of, voluntarily or involuntarily, by
operation of law or otherwise, by an optionee.
ARTICLE VI
Successors and Assigns
The provisions of the Plan shall be binding upon each optionee granted
an option thereunder and his successors and assigns, including, without
limitation, the estate of any such optionee and the executors, administrators,
and trustees of such estate, and any receiver, trustee in bankruptcy, or
representative of the creditors of such optionee.
ARTICLE VII
Terms and Conditions of Options
Each option granted under the Plan shall be evidenced by a written
Stock Option Agreement in a form consistent with the Plan, which shall include
the following terms and provisions:
(1) Option price. The price to be paid by the respective optionee for
the shares of common stock that may be purchased under such Stock Option
Agreement shall be as provided therein, which price shall be established on a
case by case basis by the Board of Directors of the Company at the time of the
grant of the respective option.
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(2) Method of exercise. The option shall be exercised by the
transmittal of written notice thereof to the Company at its principal place of
business, and the tender therewith of the optionee's check in payment of the
purchase price provided therein. Upon receipt of such notice and negotiation of
said check, the Company shall make immediate delivery of a certificate or
certificates representing the shares of common stock purchased upon exercise of
the option, provided that if any law or regulation requires the Company to take
any action with respect to the shares specified in such notice before the
issuance thereof, then the date of delivery of such shares shall be extended for
the period necessary to take such action.
(3) Option term. Subject to the provisions of Article VIII hereafter,
the option shall be exercisable only during the period provided therein, which
shall be established on a case by case basis by the Board of Directors of the
Company at the time of the grant of the respective option.
(4) Exercise of option. The option may be exercised only in such manner
that the optionee acquires all shares of common stock subject thereto in a
single transaction.
(5) Conditions of exercise. The Board of Directors shall establish the
conditions, if any, for the exercise of each option granted hereunder.
(6) Nonassignability of Option Rights. No option shall be assignable or
transferable by the optionee, and each option shall be exercisable only by the
optionee named therein.
(7) Effect of termination of employment or death. If an optionee ceases
to be an employee of the Company, Waste Industries South, Inc., Waste Industries
West, Inc., Waste Enterprises, Inc., or KABCO, Inc., or of any parent or
subsidiary of such corporations, for any
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reason whatsoever, including, but not limited to, death, retirement,
resignation, disability, or termination of employment with or without cause, any
unexercised option granted to him under the Plan that is otherwise exercisable
shall terminate.
(8) Restriction on issuance of shares. The Company shall not be
obligated to sell or issue shares pursuant to an option unless such shares are
effectively registered or exempt from registration under the Securities Act of
1933, as amended (the "Act"). Upon exercise of an option granted under the Plan,
the respective optionee shall execute an investment letter warranting that he is
acquiring such shares (and any shares or securities that may be issued to him by
reason of his ownership of such shares) for investment only and not with a view
to a "distribution" as such term is used in the Act, and that he will not make a
sale or disposition of any such shares or securities in the absence of a
registration statement being on file with respect to such shares or securities
under the Act, without first obtaining and delivering to the Company an opinion
of counsel satisfactory to the counsel to the Company that such sale or
disposition will not constitute a violation of the Act. Appropriate notations of
such undertakings may be affixed to the certificates representing such shares or
securities. Such shares or securities shall also be subject to such other terms,
conditions, and restrictions on ownership, transfer, or disposition as shall be
established on a case by case basis by the Board of Directors at the time of the
grant of the respective option.
(9) Rights as shareholder. An optionee granted an option under the Plan
shall have no rights as a stockholder with respect to the shares subject thereto
until his exercise of the option and the issuance to him of a certificate or
certificates evidencing such shares. Except as provided in paragraph (3) of
Article II hereof, no adjustment shall be made for dividends or other rights for
which the record date precedes the date of issuance of such certificate or
certificates.
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ARTICLE VIII
Effective Date, Amendment, and Term of Plan
(1) The Plan shall be subject to approval by the stockholders of the
Company and shall be adopted by and for the Company upon the date of such
approval. Options may be granted under the Plan prior to such stockholder
approval, but these options shall be contingent upon such stockholder approval
being obtained and may not be exercised prior to that approval. The Board of
Directors of the Company may terminate the Plan at any time. However,
termination of the Plan will not affect rights and obligations under options
granted thereunder prior thereto and in effect at the time of such termination.
(2) The Board of Directors may at any time amend the Plan, provided
that without approval of the stockholders of the Company no such amendment shall
increase the total number of shares covered by the Plan or change the class of
employees eligible for the grant of options under the Plan. Further, no such
amendment shall affect the provisions of any option granted under the Plan prior
thereto.
(3) Use of proceeds. The proceeds from the sale of shares pursuant to
the exercise of options granted under the Plan shall constitute general funds of
the Company.
(4) Term of Plan. No options shall be granted under the Plan more than
ten (10) years after the date of the Plan's approval by the stockholders of the
Company.
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INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Waste Industries, Inc. (the "Company") on Form S-8 of our report dated May 5,
1997, appearing in the Company's prospectus dated June 13, 1997.
/s/ Deloitte & Touche LLP
Raleigh, North Carolina
March 24, 1998
