<PAGE> 1
As filed with the Securities and Exchange Commission on February 10, 1999
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
WASTE CONNECTIONS, INC.
-----------------------
(Exact name of registrant as specified in its charter)
DELAWARE 94-3283464
(State of incorporation) (IRS Employer identification No.)
2260 Douglas Blvd., Suite 280
Roseville, CA 95661
(Address of principal executive offices)
--------------------------
WASTE CONNECTIONS, INC.
FIRST AMENDED AND RESTATED
1997 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
--------------------------
Ronald J. Mittelstaedt,
Chief Executive Officer and President
WASTE CONNECTIONS, INC.
2260 Douglas Blvd., Suite 280
Roseville, CA 95661
(916) 772-2221
(Name, address and telephone number of agent for service)
--------------------------
Copies to:
Robert D. Evans, Esq.
Carolyn S. Reiser, Esq.
Christina M. O'Brien, Esq.
SHARTSIS, FRIESE & GINSBURG LLP
One Maritime Plaza, 18th Floor
San Francisco, California 94111
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Proposed
Title of Maximum Proposed Maximum
Securities To Be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered Per Share (1) Price Registration Fee
---------------- ------------ -------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 820,132 $18.4375 $15,121,183.75 $4,203.69
$0.01 par value,
issuable upon
exercise of
options under
Waste Connections,
Inc. First Amended and
Restated 1997
Stock Option Plan
- --------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
in accordance with Rules 457(c) and (h) under the Securities Act of 1933, based
upon the average of the high and low prices reported in the Nasdaq National
Market on February 4, 1999.
----------------------------------------------------
The contents of the Registrant's Registration Statement on Form S-8
(File No. 333-63407) as filed with the Securities and Exchange Commission on
September 15, 1998, are incorporated herein by reference. This Registration
Statement covers an additional 820,132 shares of the Registrant's Common Stock
authorized to be issued under the Registrant's First Amended and Restated 1997
Stock Option Plan. The Registrant previously registered an aggregate of 309,700
shares of its Common Stock issuable under such Plan on its Registration
Statement on Form S-8 (File No. 333-63407) as filed with the Securities and
Exchange Commission on September 15, 1998. Pursuant to Rule 429, the prospectus
relating to the shares registered pursuant to this Registration Statement also
relates to the 309,700 shares of the Registrant's Common Stock registered
pursuant to Registration Statement No. 333-63407.
ii
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended,
(the "Exchange Act") or the Securities Act of 1933, as amended, are hereby
incorporated by reference into this Registration Statement:
a) The Registrant's Prospectus dated and filed with the Securities and
Exchange Commission on February 4, 1999, in connection with the Registrant's
Registration Statement on Form S-1, File No. 333-70253, as amended.
b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998, and filed with the Securities and Exchange Commission on
November 16, 1998, and amended on January 13, 1999.
c) The Registrant's Current Reports on Forms 8-K dated January 5, 1999,
January 13, 1999, and February 1, 1999.
d) The description of the Registrant's Common Stock is set forth under
the heading "Description of Capital Stock" on page 64 of the Registrant's
Prospectus dated and filed with the Securities and Exchange Commission on
February 4, 1999, in connection with the Registrant's Registration Statement on
Form S-1, File No. 333-70253, as amended.
All documents subsequently filed by Registrant with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all securities offered by this
Registration Statement have been sold or that deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part of this Registration Statement from the
respective dates of the filing of such documents with the Securities and
Exchange Commission until the information contained therein is superseded or
updated by any subsequently-filed document that is or is deemed to be
incorporated by reference in this Registration Statement.
ITEM 8. EXHIBITS.
4.1 Waste Connections, Inc.'s First Amended and Restated 1997 Stock
Option Plan.
5.1 Opinion of Shartsis, Friese & Ginsburg LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Shartsis, Friese & Ginsburg LLP (reference is made to
Exhibit 5.1).
23.3 Consent of PricewaterhouseCoopers LLP, independent auditors.
II-1
<PAGE> 4
23.4 Consent of Grant Thornton LLP, independent auditors.
24.1 Power of Attorney of certain officers and directors (reference
is made to page II-4).
II-2
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Roseville, California, on February 9, 1999.
WASTE CONNECTIONS, INC.
(Registrant)
By: /s/ Ronald J. Mittelstaedt
--------------------------------------
Ronald J. Mittelstaedt,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ronald J. Mittelstaedt and Steven F.
Bouck, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Ronald J. Mittelstaedt President, Chief Executive February 9, 1999
- ---------------------------------------- Officer and Chairman
Ronald J. Mittelstaedt
/s/ Steven F. Bouck Executive Vice President and February 9, 1999
- ---------------------------------------- Chief Financial Officer
Steven F. Bouck
/s/ Michael R. Foos Vice President and Corporate February 9, 1999
- ---------------------------------------- Controller
Michael R. Foos
/s/ Eugene V. Dupreau Director and Vice February 9, 1999
- ---------------------------------------- President--Madera
Eugene V. Dupreau
/s/ Michael W. Harlan Director February 9, 1999
- ----------------------------------------
Michael W. Harlan
/s/ William J. Razzouk Director February 9, 1999
- ----------------------------------------
William J. Razzouk
</TABLE>
II-3
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
-------------
<S> <C>
4.1 Waste Connections, Inc.'s First Amended and Restated 1997 Stock
Option Plan.
5.1 Opinion of Shartsis, Friese & Ginsburg LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Shartsis, Friese & Ginsburg LLP (reference is made to
Exhibit 5.1).
23.3 Consent of PricewaterhouseCoopers LLP, independent auditors
23.4 Consent of Grant Thornton, independent auditors.
24.1 Power of Attorney of certain officers and directors (reference is
made to page II-4)
</TABLE>
II-4
<PAGE> 1
EXHIBIT 4.1
WASTE CONNECTIONS, INC.
FIRST AMENDED AND RESTATED
1997 STOCK OPTION PLAN
1. PURPOSE.
The purpose of the Plan is to provide a means for the Company and any
Subsidiary, through the grant of Incentive Stock Options and Nonqualified Stock
Options to selected Employees, Consultants and Directors, to attract and retain
persons of ability as Employees, Consultants and Directors, and to motivate such
persons to exert their best efforts on behalf of the Company and any Subsidiary.
2. DEFINITIONS.
(a) "BOARD" means the Company's Board of Directors.
(b) "CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
(c) "COMMITTEE" means a committee appointed by the Board in accordance
with section 4(b) of the Plan.
(d) "COMPANY" means Waste Connections, Inc., a Delaware corporation.
(e) "CONSULTANT" means any person, including an advisor, engaged by the
Company or a Subsidiary to render consulting services and who is compensated for
such services; provided that the term "Consultant" shall not include Directors
who are paid only a director's fee by the Company or who are not compensated by
the Company for their services as Directors.
(f) "CONTINUOUS STATUS AS AN EMPLOYEE, CONSULTANT OR DIRECTOR" means the
employment or relationship as a Consultant or Director is not interrupted or
terminated. The Board, in its sole discretion, may determine whether Continuous
Status as an Employee, Consultant or Director shall be considered interrupted in
the case of (i) any leave of absence approved by the Board, including sick
leave, military leave or any other personal leave, or (ii) transfers between
locations of the Company or between the Company and a Subsidiary or their
successors.
(g) "DIRECTOR" means a member of the Company's Board.
(h) "DISABILITY" means permanent and total disability within the meaning
of section 422(c)(6) of the Code.
(i) "EMPLOYEE" means any person, including Officers and Directors,
employed by the Company or any Subsidiary of the Company. Neither service as a
Consultant or a Director nor receipt of a director's fee from the Company shall
be sufficient to constitute "employment" by the Company.
Page-1 Exhibit 4.1
<PAGE> 2
(j) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(k) "INCENTIVE STOCK OPTIONS" means Options that are intended to qualify
as incentive stock options within the meaning of section 422 of the Code.
(l) "NON-EMPLOYEE DIRECTOR" means a Director who satisfies the
requirements established from time to time by the Securities and Exchange
Commission for non-employee directors under Rule 16b-3.
(m) "NONQUALIFIED STOCK OPTIONS" means Options that are not intended to
qualify as Incentive Stock Options.
(n) "OFFICER" means a person who is an officer of the Company or a
Subsidiary within the meaning of section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(o) "OPTION AGREEMENT" means a written agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option grant.
Each Option Agreement shall be subject to the terms and conditions of the Plan.
(p) "OPTIONEE" means an Employee, Consultant or Director who holds an
outstanding Option.
(q) "OPTIONS" means, collectively, Incentive Stock Options and
Nonqualified Stock Options.
(r) "OUTSIDE DIRECTOR" means a member of the Board who satisfies the
requirements established from time to time for outside directors under section
162(m) of the Code.
(s) "PLAN" means this Waste Connections, Inc. First Amended and Restated
1997 Stock Option Plan.
(t) "RULE 16b-3" means Rule 16b-3 under the Exchange Act or any
successor to Rule 16b-3, as amended from time to time and as in effect when
discretion is being exercised with respect to the Plan.
(u) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(v) "STOCK" means the Common Stock of the Company.
(w) "SUBSIDIARY" means any corporation that at the time an Option is
granted under the Plan qualifies as a subsidiary of the Company under the
definition of "subsidiary corporation" contained in section 424(f) of the Code,
or any similar provision hereafter enacted.
(x) "TEN PERCENT SHAREHOLDER" means an individual who, at the time of an
Option grant, owns stock possessing more than ten percent of the total combined
voting power of all classes of stock of the Company.
Page-2 Exhibit 4.1
<PAGE> 3
3. SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in section 6 for changes in Stock, the
Stock that may be sold pursuant to Options shall not exceed in the aggregate 12%
of the number of shares of Stock outstanding at any given time. That number of
shares shall be reserved for Options (subject to adjustment as provided in
section 6). If any Option for any reason terminates, expires or is cancelled
without having been exercised in full, the Stock not purchased under such Option
shall revert to and again become available for issuance under the Plan.
4. ADMINISTRATION.
(a) The Plan shall be administered by the Board or, at the election of
the Board, by a Committee, as provided in subsection (b). Subject to the Plan,
the Board shall:
(i) determine and designate from time to time those Employees,
Consultants and Directors to whom Options are to be granted, and whether the
Options granted will be Incentive Stock Options or Nonqualified Stock Options;
(ii) authorize the granting of Incentive Stock Options,
Nonqualified Stock Options or combinations thereof;
(iii) determine the number of shares subject to each Option and
the Exercise Price of each Option;
(iv) determine the time or times when and the manner in which
each Option shall be exercisable and the duration of the exercise period;
(v) construe and interpret the Plan and the Options, and
establish, amend and revoke rules and regulations for the Plan's administration,
and correct any defect, omission or inconsistency in the Plan or any Option
Agreement in a manner and to the extent it deems necessary or expedient to make
the Plan fully effective; and
(vi) make such other determinations as it may be authorized to
make in the Plan and as it may deem necessary and desirable for the purposes of
the Plan.
Notwithstanding the foregoing, however, (1) no Option shall be granted after the
expiration of ten years from the effective date of the Plan specified in section
9 below, (2) the aggregate fair market value (determined as of the date the
Option is granted) of the Stock subject to Options that become exercisable for
the first time by any Employee during any calendar year under all Incentive
Stock Options of the Company and its Subsidiaries shall not exceed $100,000, and
(3) no person who is not an Employee of the Company or a Subsidiary shall be
entitled to receive Incentive Stock Options under the Plan.
(b) The Board may delegate administration of the Plan to a Committee of
the Board. The Committee shall consist of not less than three members appointed
by the Board. Subject to the foregoing, the Board may from time to time increase
the size of the Committee and appoint additional members, remove members (with
or without cause) and appoint new members in substitution therefor, or fill
vacancies, however caused. If the Board delegates administration of
Page-3 Exhibit 4.1
<PAGE> 4
the Plan to a Committee, the Committee shall have the powers theretofore
possessed by the Board with respect to the administration of the Plan (and
references in this Plan to the Board shall apply to the Committee), subject,
however, to such resolutions, not inconsistent with the provisions of the Plan,
as may be adopted from time to time by the Board. The Board may abolish the
Committee at any time and revest in the Board the administration of the Plan.
(c) Notwithstanding anything in this section 4 to the contrary,
beginning at such time as the Company first registers a class of equity
securities under section 12 of the Exchange Act, all decisions to grant Options
shall be made by the Board or by a Committee comprised solely of two or more
Directors, each of whom is both a Non-Employee Director and an Outside Director,
or shall be made in another manner that satisfies the requirements of Section
16b-3, so that transactions between the Company and any Officer or Director
relating to such Options may be exempt from section 16(b) of the Exchange Act.
5. TERMS AND CONDITIONS OF OPTIONS.
Each Option granted shall be evidenced by an Option Agreement in
substantially the form attached hereto as Annex A or Annex B or such other form
as may be approved by the Board. Each Option Agreement shall include the
following terms and conditions and such other terms and conditions as the Board
may deem appropriate:
(a) OPTION TERM. Each Option Agreement shall specify the term for which
the Option thereunder is granted and shall provide that such Option shall expire
at the end of such term. The Board may extend such term; provided that, in the
case of an Incentive Stock Option, such extension shall not in any way
disqualify the Option as an Incentive Stock Option. The term of any Option,
including any such extensions, shall not exceed ten years from the date of
grant; provided that, in the case of an Incentive Stock Option granted to a Ten
Percent Shareholder, such term, including extensions, shall not exceed five
years from the date of grant.
(b) EXERCISE PRICE. Each Option Agreement shall specify the exercise
price per share, as determined by the Board at the time the Option is granted;
provided that the exercise price of an Incentive Stock Option shall be not less
than the fair market value, or if granted to a Ten Percent Shareholder, 110
percent of the fair market value, of one share of Stock on the date the Option
is granted, as such fair market value is determined by the Board.
(c) VESTING. Each Option Agreement shall specify when it is exercisable.
The total number of shares of Stock subject to an Option may, but need not, be
allotted in periodic installments (which may, but need not be, equal). An Option
Agreement may provide that from time to time during each of such installment
periods, the Option may become exercisable ("vest") with respect to some or all
of the shares allotted to that period, and may be exercised with respect to some
or all of the shares allotted to such period or any prior period as to which the
Option shall have become vested but shall not have been fully exercised. An
Option may be subject to such other terms and conditions on the time or times
when it may be exercised (which may be based on performance or other criteria)
as the Board deems appropriate.
(d) PAYMENT OF PURCHASE PRICE ON EXERCISE. Each Option Agreement shall
provide that the purchase price of the shares as to which such Option may be
exercised shall be paid to
Page-4 Exhibit 4.1
<PAGE> 5
the Company at the time of exercise either (i) in cash, or (ii) in the absolute
discretion of the Board (which discretion may be exercised in a particular case
without regard to any other case or cases), at the time of the grant or
thereafter, (A) by the withholding of shares of Stock issuable on exercise of
the Option or the delivery to the Company of other Stock owned by the Optionee,
provided in either case that the Optionee has owned shares of Stock equal in
number to the shares so withheld for a period sufficient to avoid a charge to
the Company's reported earnings, (B) according to a deferred payment or other
arrangement (which may include, without limiting the generality of the
foregoing, the use of Stock) with the person to whom the Option is granted or to
whom the Option is transferred pursuant to section 5(e), or (C) in any other
form of legal consideration that may be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be
payable at least annually and shall be charged at the minimum rate necessary to
avoid the treatment as interest, under any applicable provisions of the Code, of
any amounts other than amounts stated to be interest under the deferred payment
arrangement, or if less, the maximum rate permitted by law.
(e) NONTRANSFERABILITY. An Option shall not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of by the Optionee
during his or her lifetime, whether by operation of law or otherwise, other than
by will or the laws of descent and distribution applicable to the Optionee, and
shall not be made subject to execution, attachment or similar process; provided
that the Board may in its discretion at the time of approval of the grant of an
Option or thereafter permit an Optionee to transfer an Option to a trust or
other entity established by the Optionee for estate planning purposes, and may
permit further transferability or impose conditions or limitations on any
permitted transferability. Otherwise, during the lifetime of an Optionee, an
Option shall be exercisable only by such Optionee.
(f) CONDITIONS ON EXERCISE OF OPTIONS AND ISSUANCE OF SHARES.
(i) SECURITIES LAW COMPLIANCE. The Plan, the grant and exercise
of Options thereunder and the obligation of the Company to sell and deliver
shares on exercise of Options shall be subject to all applicable Federal and
state laws, rules and regulations and to such approvals by any government or
regulatory agency as may be required, in the opinion of the Board. Shares shall
not be issued on exercise of an Option until (1) the listing of such shares on
any stock exchange on which the Stock may then be listed and compliance with all
requirements of such exchange, and (2) the completion of any registration or
qualification of such shares under any Federal or state law, including without
limitation the Securities Act and the Exchange Act, or any rule or regulation of
any government body which the Company determines in its sole discretion to be
necessary or advisable.
(ii) INVESTMENT REPRESENTATION. The Company may require any
Optionee, or any person to whom an Option is transferred, as a condition of
exercising such Option, to (1) give written assurances satisfactory to the
Company as to the Optionee's knowledge and experience in financial and business
matters or to employ a purchaser representative reasonably satisfactory to the
Company who is knowledgeable and experienced in financial and business matters,
and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and risks of exercising the Option; and (2)
to give written assurances satisfactory to the Company stating that such person
is acquiring the Stock subject to the Option
Page-5 Exhibit 4.1
<PAGE> 6
for such person's own account and not with any present intention of selling or
otherwise distributing the Stock. The foregoing requirements, and any assurances
given pursuant to such requirements, shall not apply if (A) the issuance of the
Stock on the exercise of the Option has been registered under a then currently
effective registration statement under the Securities Act, or (B) counsel for
the Company determines as to any particular requirement that such requirement
need not be met in the circumstances under the then applicable securities laws.
The Company may, with the advice of its counsel, place such legends on stock
certificates issued under the Plan as the Company deems necessary or appropriate
to comply with applicable securities laws, including, but not limited to,
legends restricting the transfer of the Stock.
(g) EXERCISE AFTER DEATH OF OPTIONEE. If an Optionee dies (i) while an
Employee, Consultant or Director, or (ii) within three months after termination
of the Optionee's Continuous Status as an Employee, Consultant or Director
because of his or her Disability or retirement, his or her Options may be
exercised (to the extent that the Optionee was entitled to do so on the date of
death or termination) by the Optionee's estate or by a person who shall have
acquired the right to exercise the Options by bequest or inheritance, but only
within the period ending on the earlier of (1) one year after the Optionee's
death (or such shorter or longer period specified in the Option Agreement, which
period shall not be less than six months), or (2) the expiration date specified
in the Option Agreement. If, after the Optionee's death, the Optionee's estate
or the person who acquired the right to exercise the Optionee's Options does not
exercise the Options within the time specified herein, the Options shall
terminate and the shares covered by such Options shall revert to and again
become available for issuance under the Plan.
(h) EXERCISE AFTER TERMINATION OF OPTIONEE'S CONTINUOUS STATUS AS AN
EMPLOYEE, CONSULTANT OR DIRECTOR AS A RESULT OF DISABILITY OR RETIREMENT. If an
Optionee's Continuous Status as an Employee, Consultant or Director terminates
as a result of the Optionee's Disability or retirement, and the Optionee does
not die within the following three months, the Optionee may exercise his or her
Options (to the extent that the Optionee was entitled to exercise them on the
date of termination), but only within the period ending on the earlier of (i)
six months after such termination (or such longer period specified in the Option
Agreement), or (ii) the expiration of the term set forth in the Option
Agreement. If, after termination, the Optionee does not exercise his or her
Options within the time specified herein, the Options shall terminate, and the
shares covered by such Options shall revert to and again become available for
issuance under the Plan.
(i) NO EXERCISE AFTER TERMINATION OF OPTIONEE'S CONTINUOUS STATUS AS AN
EMPLOYEE, CONSULTANT OR DIRECTOR OTHER THAN AS A RESULT OF DEATH, DISABILITY OR
RETIREMENT. If an Optionee's Continuous Status as an Employee, Consultant or
Director terminates other than as a result of the Optionee's death, Disability
or retirement, all right of the Optionee to exercise his or her Options shall
terminate on the date of termination of such Continuous Status as an Employee,
Consultant or Director. The Options shall terminate on such termination date,
and the shares covered by such Options shall revert to and again become
available for issuance under the Plan.
(j) EXCEPTIONS. Notwithstanding subsections (h), (i) and (j), the Board
shall have the authority to extend the expiration date of any outstanding Option
in circumstances in which it deems such action to be appropriate, provided that
no such extension shall extend the term of an
Page-6 Exhibit 4.1
<PAGE> 7
Option beyond the expiration date of the term of such Option as set forth in the
Option Agreement.
(k) INCENTIVE STOCK OPTIONS. Each Option Agreement that provides for the
grant of an Incentive Stock Option shall contain such terms and conditions as
the Board determines to be necessary or desirable to qualify such Option as an
Incentive Stock Option within the meaning of section 422 of the Code.
(l) COMPANY'S REPURCHASE RIGHT. Each Option Agreement may, but is not
required to, include provisions whereby the Company shall have the right to
repurchase any and all shares acquired by an Optionee on exercise of any Option
granted under the Plan, at such price and on such other terms and conditions as
the Board may approve and as may be set forth in the Option Agreement. Such
right shall be exercisable by the Company after termination of an Optionee's
Continuous Status as an Employee, Consultant or Director, whenever such
termination may occur and whether such termination is voluntary or involuntary,
with cause or without cause, without regard to the reason therefor, if any.
6. ADJUSTMENTS ON CHANGES IN STOCK.
In the event of (a) a merger or consolidation in which the Company is
not the surviving corporation, or (b) a reverse merger in which the Company is
the surviving corporation but the shares of the Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, then to the extent
permitted by applicable law: (i) any surviving corporation shall assume any
Options outstanding under the Plan or shall substitute similar options for those
outstanding under the Plan, or (ii) any Options outstanding under the Plan shall
continue in full force and effect. If any surviving corporation refuses to
assume or continue such Options, or to substitute similar options for those
outstanding under the Plan, then such Options shall be terminated if not
exercised prior to the merger or reverse merger. If the Company dissolves or is
liquidated, any Options outstanding under the Plan shall terminate if not
exercised prior to such event.
7. AMENDMENT OF THE PLAN.
(a) The Board may from time to time amend or modify the Plan for any
reason; provided that the Company will seek shareholder approval for any change
if and to the extent required by applicable law, regulation or rule.
(b) It is expressly contemplated that the Board may amend the Plan in
any respect the Board deems necessary or advisable to provide Optionees with the
maximum benefits provided or to be provided under the Code and the regulations
promulgated thereunder relating to Incentive Stock Options or to cause the Plan
or Incentive Stock Options to comply therewith.
(c) Rights and obligations under any Option granted before amendment of
the Plan shall not be altered or impaired by any amendment, unless the Optionee
consents in writing.
8. TERMINATION OR SUSPENSION OF THE PLAN.
Page-7 Exhibit 4.1
<PAGE> 8
The Board may suspend or terminate the Plan at any time for any reason.
Unless sooner terminated, the Plan shall terminate on the day prior to the tenth
anniversary of the earlier of the date the Plan is adopted by the Board or the
date the Plan is approved by the Company's shareholders. No Options may be
granted under the Plan while the Plan is suspended or after it is terminated.
Rights and obligations under any Option granted while the Plan is in effect
shall not be altered or impaired by suspension or termination of the Plan,
except with the written consent of the Optionee.
9. EFFECTIVE DATE OF THE PLAN.
The effective date of the Plan shall be determined by the Board, subject
to approval by the shareholders of the Company holding not less than a majority
of the shares present and voting at an annual or special meeting or by written
consent. Notwithstanding the foregoing, if the Plan is approved by the Board
prior to such meeting or the giving of such consent, Options may be granted by
the Board as provided herein subject to such subsequent shareholder approval.
10. WITHHOLDING TAXES.
Whenever the Company proposes or is required to issue or transfer shares
of Stock under the Plan, the Company shall have the right to require the grantee
to remit to the Company an amount sufficient to satisfy any Federal, state or
local withholding tax requirements prior to the delivery of any certificate or
certificates for such shares. Alternatively, the Company may issue or transfer
such shares net of the number of shares sufficient to satisfy the withholding
tax requirements. For withholding tax purposes, the shares of Stock shall be
valued on the date the withholding obligation is incurred.
11. MISCELLANEOUS.
(a) NO RIGHTS AS SHAREHOLDER. No Optionee, as such, shall have any
rights as a shareholder of the Company.
(b) NO RIGHTS TO CONTINUED EMPLOYMENT OR ENGAGEMENT. The Plan and any
Options granted under the Plan shall not confer on any Optionee any right with
respect to continuation of employment by the Company or any Subsidiary or
engagement as a Consultant or Director, nor shall they interfere in any way with
the right of the Company or any Subsidiary that employs or engages an Optionee
to terminate the Optionee's employment or engagement at any time.
(c) COMPLIANCE WITH SECTION 16 OF THE EXCHANGE ACT. Beginning at such
time as the Company first registers a class of equity securities under section
12 of the Exchange Act, the Company intends that the Plan shall comply in all
respects with Rule 16b-3. If after such time any provision of this Plan is found
not to be in compliance with Rule 16b-3, that provision shall be deemed to have
been amended or deleted as and to the extent necessary to comply with Rule
16b-3, and the remaining provisions of the Plan shall continue in full force and
effect without change. All transactions under the Plan after such time shall be
executed in accordance with the requirements of section 16 of the Exchange Act
and the applicable regulations promulgated thereunder.
Page-8 Exhibit 4.1
<PAGE> 9
ANNEX A
INCENTIVE STOCK OPTION AGREEMENT
__________________, Optionee:
Waste Connections., Inc. (the "Company"), pursuant to its First Amended and
Restated 1997 Stock Option Plan (the "Plan"), has this ______________, 19___,
granted to you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Stock"). This option is intended to qualify as an
"incentive stock option" within the meaning of section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
The grant under this Incentive Stock Option Agreement (the "Agreement") is in
connection with and in furtherance of the Company's compensatory benefit plan
for participation of the Company's Employees (including Officers), Directors or
Consultants. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Plan. The option granted hereunder shall be
subject to and governed by the following terms and conditions:
1. The total number of shares of Stock subject to this option is
______________ shares. Subject to the limitations herein and in the Plan, this
option shall become exercisable (vest) as follows:
Number of Shares Date of Earliest Exercise
(Installment) (Vesting)
The installments provided for are cumulative. Each such installment that becomes
exercisable shall remain exercisable until expiration or earlier termination of
the option.
2. (a) The exercise price of this option is $_____________________ per
share, being not less than 100 percent of [110 percent if Optionee is a Ten
Percent Shareholder] the fair market value of the Stock on the date of grant of
this option.
(b) Payment of the exercise price per share is due in full in cash
(including check) on exercise of all or any part of each installment that has
become exercisable by you; provided that, if at the time of exercise the Stock
is publicly traded and quoted regularly in the Wall Street Journal, payment of
the exercise price, to the extent permitted by the Company and applicable
statutes and regulations, may be made by having the Company withhold shares of
Stock issuable on such exercise, by delivering shares of Stock already owned by
you, or by delivering a combination of cash and such shares. Such Stock (i)
shall be valued at its fair market value at the close of business on the date of
exercise, (ii) if originally acquired from the Company, must have been held for
the period required to avoid a charge to the Company's reported earnings, and
(iii) must be owned free and clear of any liens, claims, encumbrances or
security interests.
(c) Notwithstanding the foregoing, this option may be exercised pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board which results in the receipt of cash (or check) by the Company prior to
the issuance of Stock.
Page-1 Annex A
<PAGE> 10
3. (a) Subject to the provisions of this Agreement, you may elect at any
time during your Continuous Status as an Employee, Consultant or Director to
exercise this option as to any part or all of the shares subject to this option
at any time during the term hereof, including, without limitation, a time prior
to the date of earliest exercise (vesting) stated in paragraph 1 hereof;
provided that:
(i) a partial exercise of this option shall be deemed to cover first
vested shares and then unvested shares next vesting;
(ii) any shares so purchased that shall not have vested as of the date
of exercise shall be subject to the purchase option in favor of the Company as
described in the Early Exercise Stock Purchase Agreement available from the
Company;
(iii) you shall enter into an Early Exercise Stock Purchase Agreement in
the form available from the Company with a vesting schedule that will result in
the same vesting as if no early exercise had occurred; and
(iv) you acknowledge that the aggregate fair market value (determined as
of the date options are granted) of any Stock subject to Incentive Stock Options
granted to you by the Company or any parent or Subsidiary that become
exercisable for the first time during any calendar year may not exceed $100,000,
and agree that to the extent that the aggregate fair market value of Stock with
respect to which such Incentive Stock Options are exercisable by you for the
first time in a calendar year exceeds $100,000, the options or portions thereof
in excess of such limit shall be treated (according to the order in which they
were granted) as Nonqualified Stock Options.
(b) The election provided in this paragraph 3 to purchase shares on the
exercise of this option prior to the vesting dates shall cease on termination of
your Continuous Status as an Employee, Consultant or Director and may not be
exercised from or after the date thereof.
4. This option may not be exercised for any number of shares that would
require the issuance of anything other than whole shares.
5. Notwithstanding anything to the contrary herein, this option may not
be exercised unless the shares issuable on exercise of this option are then
registered under the Act or, if such shares are not then so registered, the
Company shall have determined that such exercise and issuance would be exempt
from the registration requirements of the Act.
6. The term of this option commences on the date hereof and, unless
sooner terminated as set forth below or in the Plan, terminates on
___________________ (which date shall be no more than [ten years] [five years if
Optionee is a Ten Percent Shareholder] from the date this option is granted). In
no event may this option be exercised on or after the date on which it
terminates. This option shall terminate prior to the expiration of its term on
the day after the termination of your Continuous Status as an Employee,
Consultant or Director for any reason or for no reason, unless:
(a) such termination is due to your retirement or Disability and you do
not die within the three months after such termination, in which event the
option shall terminate on the
Page-2 Annex A
<PAGE> 11
earlier of the termination date set forth above or six months after such
termination of your Continuous Status as an Employee, Consultant or Director; or
(b) such termination is due to your death, or such termination is due to
your retirement or Disability and you die within three months after such
termination, in which event the option shall terminate on the earlier of the
termination date set forth above or the first anniversary of your death.
Notwithstanding any of the foregoing provisions to the contrary however,
this option may be exercised following termination of your Continuous Status as
an Employee, Consultant or Director only as to that number of shares as to which
it shall have been exercisable under paragraph 1 of this Agreement on the date
of such termination.
7. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to subsection 5(f)
of the Plan.
(b) By exercising this option you agree that:
(i) the Company may require you to enter into an arrangement providing
for the cash payment by you to the Company of any tax withholding obligation of
the Company arising by reason of (1) the exercise of this option; (2) the lapse
of any substantial risk of forfeiture to which the shares are subject at the
time of exercise; or (3) the disposition of shares acquired on such exercise;
(ii) you will notify the Company in writing within fifteen days after
the date of any disposition of any of the shares of the Stock issued on exercise
of this option that occurs within two years after the date of this option grant
or within one year after such shares of Stock are issued on exercise of this
option; and
(iii) the Company (or a representative of the underwriters) may, in
connection with an underwritten registration of the offering of any securities
of the Company under the Act, require that you not sell or otherwise transfer or
dispose of any shares of Stock or other securities of the Company during such
period (not to exceed 180 days) following the effective date (the "Effective
Date") of the registration statement of the Company filed under the Act as may
be requested by the Company or the representative of the underwriters. For
purposes of this restriction, you will be deemed to own securities which (1) are
owned directly or indirectly by you, including securities held for your benefit
by nominees, custodians, brokers or pledgees; (2) may be acquired by you within
sixty days of the Effective Date; (3) are owned directly or indirectly, by or
for your brothers or sisters (whether by whole or half blood) spouse, ancestors
and lineal descendants; or (4) are owned, directly or indirectly, by or for a
corporation, partnership, estate or trust of which you are a shareholder,
partner or beneficiary, but only to the extent of your proportionate interest
therein as a shareholder, partner or beneficiary thereof. You further agree that
the Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such period.
8. You hereby represent and warrant to and agree with the Company as
follows:
Page-3 Annex A
<PAGE> 12
(a) You have been granted access to, and have reviewed carefully, the
Plan and such records of the Company as may be necessary to permit you to
evaluate the option and, before any exercise of the option, you will review such
records of the Company as may be necessary to permit you to evaluate the merits
and risks of an investment in Stock. You are entering into this Agreement and
the transactions contemplated hereby solely in reliance on your own
investigation and such review. You have had an opportunity to meet with the
officers of the Company subsequent to review of such information to discuss with
them your questions concerning the Company and the terms and conditions of the
acquisitions hereunder.
(b) You are acquiring the option and will acquire the Stock, if at all,
pursuant to this Agreement with your own funds, and not with the funds of anyone
else. You are acquiring the option and will acquire the Stock, if at all, for
your own account, not as a nominee or agent and not for the account of any other
person or firm. No one else has or will have on any exercise of the option any
interest, beneficial or otherwise, in the option or, on the exercise of the
option, in any of the shares of Stock to be acquired on such exercise. You are
not, and prior to any exercise of the option will not be, obligated to transfer
the option or any Stock or any interest therein to anyone else, and you do not
and will not have any agreement or understanding to do so. You are acquiring the
option and will purchase Stock on the exercise hereof, if at all, for investment
for an indefinite period and not with a view to the sale or distribution of the
option or any Stock or any part or all thereof, by public or private sale or
other disposition, and you have no intention of selling, granting any
participation in or otherwise distributing or disposing of any or all of the
option or any Stock or any interest therein. You do not, and on any exercise of
the option will not, intend to subdivide the option or any shares purchased on
exercise thereof with anyone.
(c) You have such knowledge and experience in financial and business
matters that the you are capable of evaluating the merits and risks of the
prospective investment contemplated by this Agreement, and you have carefully
reviewed and will carefully review all the information regarding the Company,
access to which has been and will be accorded to you hereunder, are thoroughly
familiar with the business, operations and properties of the Company by virtue
of such review and of your relationship with the Company and have discussed with
the officers of the Company any questions you have with respect to the Company.
(d) Without in any way limiting your representations as set forth
herein, you further agree that you shall in no event make any disposition of all
or any part of or interest in the Stock or the option and that the Stock and the
option shall not be encumbered, pledged, hypothecated, sold, assigned or
transferred by you nor shall you receive any consideration for the option or any
Stock or for any interest therein from any person, unless and until prior to any
proposed encumbrance, pledge, hypothecation, sale, assignment, transfer or other
disposition of the option or any Stock, either (i) a registration statement on
Form S-1 (or any other form replacing such form or appropriate for the purpose
under the Act) with respect to the option or the Stock, as the case may be,
proposed to be transferred or otherwise disposed of shall be then effective or
(ii)(1) you have notified the Company of the proposed disposition and have
furnished the Company with a detailed statement of the circumstances surrounding
the proposed disposition, (2) you have furnished the Company with an opinion of
counsel (obtained at your expense) in form and substance satisfactory to the
Company to the effect that such disposition will not require registration of the
option or any Stock, as the case may be, under the Act or qualification of the
option or any Stock, as the case may be, under any other securities law and
Page-4 Annex A
<PAGE> 13
(3) counsel for the Company shall have concurred in such opinion and the Company
shall have advised you of such concurrence.
(e) If the Company proposes to sell Stock in a public offering
registered under the Act or exempt from registration under the Act, the
administrators of the securities laws of certain states may require as a
condition of registration or such exemption that some or all of the Shares be
deposited in an escrow or be subject to waivers of rights to dividends and
assets on liquidation, or both, for an extended period of time, subject to
release if specified financial or market requirements are met and partial
cancellation if such requirements are not met. You agree that you will enter
into any such escrow or waiver agreement that the Company may consider necessary
for the successful completion of such public offering.
(f) If, in the opinion of counsel for the Company, you at any time act
in any manner not consistent with your representations, warranties and
agreements in this Agreement, the Company may refuse to transfer the option or
any Stock until such time as counsel for the Company is of the opinion that such
transfer may be effected in compliance with all provisions of this Agreement and
such transfer will not require registration of the option or any Stock under the
Act or qualification of the option or any Stock under any other securities law.
(g) You hereby agree to indemnify and defend the Company and its
directors, officers, employees and agents and hold them harmless from and
against any and all claims, liabilities, damages or expenses incurred on account
of or arising out of (i) any inaccuracy in or breach of any of your
representations, warranties or agreements in this Agreement, including, without
limitation, the defense of any claim based on any allegation of fact
inconsistent with any of such representations, warranties or agreements; (ii)
the disposition of the option or any Stock that you may receive, contrary to any
of such representations, warranties and agreements; or (iii) any action, suit or
proceeding based on a claim that any of such representations, warranties or
agreements were inaccurate or misleading or otherwise cause for obtaining
damages or redress from the Company under the Act or any other securities law.
(h) Certificates representing any Stock received on exercise of the
option will bear a legend on the face thereof (or on the reverse thereof with a
reference to such legend on the face thereof) substantially in the form set
forth below, which legend restricts the sale, transfer or disposition of the
Stock otherwise than in accordance with this Agreement:
SALE, TRANSFER, ENCUMBRANCE, HYPOTHECATION, GIFT OR OTHER DISPOSITION OR
ALIENATION OF SUCH SHARES OR ANY INTEREST THEREIN IS RESTRICTED BY AND
SUBJECT TO AN INCENTIVE STOCK OPTION AGREEMENT DATED ______________,
19__, A COPY OF WHICH MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE
CORPORATION AND ALL OF THE PROVISIONS OF WHICH ARE INCORPORATED BY
REFERENCE IN THIS CERTIFICATE.
(i) If Stock acquired on exercise of this option is transferred other
than by will or by the laws of descent and distribution within two years after
the date this option is granted or within one year after the issuance of such
Stock on exercise of this option, such transfer shall be a "disqualifying
disposition" under the Code, and you must bear the tax consequences thereof.
Page-5 Annex A
<PAGE> 14
(j) The Company may require you to furnish to the Company, prior and as
a condition to the issuance of any Stock on any exercise of the option, an
agreement (in such form as the Company may specify) in which you confirm the
foregoing representations, warranties and agreements or make similar or
additional representations, warranties and agreements with respect to such
Stock.
9. This option is generally not transferable, except by will or by the
laws of descent and distribution, unless the Company expressly permits a
transfer, such as to a trust or other entity for estate planning purposes.
Unless the Company approves such a transfer, this option is exercisable during
your life only by you.
10. This Agreement is not an employment contract and nothing in this
Agreement shall be deemed to create in any way whatsoever any obligation on your
part to continue in the employ of the Company, or of the Company to continue
your employment with the Company.
11. Any notice or other communication to be given under or in connection
with this Agreement or the Plan shall be given in writing and shall be deemed
effectively given on receipt or, in the case of notices from the Company to you,
five days after deposit in the United States mail, postage prepaid, addressed to
you at the address specified below or at such other address as you may hereafter
designate by notice to the Company.
12. This Agreement is subject to all provisions of the Plan, a copy of
which is attached hereto and made a part of this Agreement, including, without
limitation, the provisions of section 5 of the Plan relating to option
provisions, and is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted pursuant to
the Plan. In the event of any conflict between the provisions of this Agreement
and those of the Plan, the provisions of the Plan shall control.
WASTE CONNECTIONS, INC.
By
--------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
First Amended and Restated
1997 Stock Option Plan
Notice of Exercise
Page-6 Annex A
<PAGE> 15
The undersigned:
(a) Acknowledges receipt of the foregoing Incentive Stock Option
Agreement and the attachments referenced therein and understands that all rights
and liabilities with respect to the option granted under the Agreement are set
forth in such Agreement and the Plan; and
(b) Acknowledges that as of the date of grant set forth in such
Agreement, the Agreement sets forth the entire understanding between the
undersigned optionee and the Company and its Subsidiaries regarding the
acquisition of Stock pursuant to the option and supersedes all prior oral and
written agreements on that subject with the exception of (i) the options, if
any, previously granted and delivered to the undersigned under stock option
plans of the Company, and (ii) the following agreements only:
NONE: _________________
(Initial)
OTHER: ________________________
________________________
________________________
_____________________________
OPTIONEE
Address:
__________________
__________________
__________________
Page-7 Annex A
<PAGE> 16
NOTICE OF EXERCISE
Waste Connections, Inc.
2260 Douglas Blvd., Suite 280
Roseville, CA 95661 Date of Exercise: __________
Ladies and Gentlemen:
This constitutes notice under my Incentive Stock Option Agreement or
Nonqualified Stock Option Agreement (as indicated below) that I elect to
purchase the number of shares of Common Stock ("Stock") of Waste Connections,
Inc. (the "Company") for the price set forth below.
<TABLE>
<S> <C> <C>
Type of Option Agreement (check one): Incentive Nonqualified
Option Agreement dated: _______________________
Number of shares as
to which option is
exercised: _______________________
Certificates to be
issued in name of: _______________________
Total exercise price: $______________________
Cash payment delivered
herewith: $______________________
Value of __________ shares
of _________________ common
stock delivered herewith:(1) $______________________
</TABLE>
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms of the Waste Connections, Inc. First
Amended and Restated 1997 Stock Option Plan or the Option Agreement, (ii) to
provide for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to notify you in
writing within fifteen days after the date of any disposition of any of the
shares of Stock issued on exercise of this option that occurs within two years
after the date of grant of this option or within one year after such shares of
Stock are issued on exercise of this option.
I hereby reaffirm all of my representations, warranties and agreements
contained in such Option Agreement as if made on and as of the date hereof, and
I hereby further represent and
- ------------
(1) Shares must meet the public trading requirements set forth in the Option
Agreement. Shares must be valued in accordance with the terms of the option
being exercised, must have been owned for the minimum period required in the
Option Agreement, and must be owned free and clear of any liens, claims,
encumbrances or security interests. Certificates must be endorsed or accompanied
by an executed assignment separate from certificate.
Page-8 Annex A
<PAGE> 17
warrant to you that I have recently consulted with my personal tax, accounting
and other advisers with regard to this option exercise; provided that if a
registration statement covering the Stock is currently in effect under the
Securities Act of 1933, as amended (the "Securities Act"), I am not required to
reaffirm my representations, warranties and agreements contained in sections
8(a)-(e) of the Option Agreement.
I hereby represent, warrant and agree with respect to the shares of
Stock of the Company that I am acquiring by this exercise of the option (the
"Shares") that, if required by the Company (or a representative of the
underwriters) in connection with an underwritten registration of the offering of
any securities of the Company under the Securities Act, I will not sell or
otherwise transfer or dispose of any shares of Stock or other securities of the
Company during such period (not to exceed 180 days) following the effective date
of the registration statement of the Company filed under the Securities Act (the
"Effective Date") as may be requested by the Company or the representative of
the underwriters. For purposes of this restriction, I will be deemed to own
securities that (i) are owned directly or indirectly by me, including securities
held for my benefit by nominees, custodians, brokers or pledgees; (ii) may be
acquired by me within sixty days of the Effective Date; (iii) are owned,
directly or indirectly, by or for my brothers or sisters (whether by whole or
half blood), spouse, ancestors and lineal descendants; or (iv) are owned,
directly or indirectly, by or for a corporation, partnership, estate or trust of
which I am a shareholder, partner or beneficiary, but only to the extent of my
proportionate interest therein as a shareholder, partner or beneficiary thereof.
I further agree that the Company may impose stop-transfer instructions with
respect to securities subject to this restriction until the end of such period.
Very truly yours,
___________________________________
Page-9 Annex A
<PAGE> 18
ANNEX B
NONQUALIFIED STOCK OPTION AGREEMENT
___________________, Optionee:
Waste Connections, Inc. (the "Company"), pursuant to its First Amended and
Restated 1997 Stock Option Plan (the "Plan"), has this ______________, 199__,
granted to you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Stock"). This option is not intended to qualify
and will not be treated as an "incentive stock option" within the meaning of
section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
The grant under this Nonqualified Stock Option Agreement (the "Agreement") is in
connection with and in furtherance of the Company's compensatory benefit plan
for participation of the Company's Employees (including Officers), Directors or
Consultants. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Plan. The option granted hereunder shall be
subject to and governed by the following terms and conditions:
1. The total number of shares of Stock subject to this option is
__________ shares. Subject to the limitations herein and in the Plan, this
option shall become exercisable (vest) as follows:
Number of Shares Date of Earliest Exercise
(Installment) (Vesting)
The installments provided for are cumulative. Each such installment that becomes
exercisable shall remain exercisable until expiration or earlier termination of
the option.
2. (a) The exercise price of this option is $______ per share.
(b) Payment of the exercise price per share is due in full in cash
(including check) on exercise of all or any part of each installment that has
become exercisable by you; provided that, if at the time of exercise, the Stock
is publicly traded and quoted regularly in the Wall Street Journal, payment of
the exercise price, to the extent permitted by the Company and applicable
statutes and regulations, may be made by having the Company withhold shares of
Stock issuable on such exercise, by delivering shares of Stock already owned by
you, or by delivering a combination of cash and such shares. Such Stock (i)
shall be valued at its fair market value at the close of business on the date of
exercise, (ii) if originally acquired from the Company, must have been held for
the period required to avoid a charge to the Company's reported earnings, and
(iii) must be owned free and clear of any liens, claims, encumbrances or
security interests.
(c) Notwithstanding the foregoing, this option may be exercised pursuant
to a program developed under Regulation T as promulgated by the Federal Reserve
Board which results in the receipt of cash (or check) by the Company prior to
the issuance of Stock.
Page-1 Annex B
<PAGE> 19
3. (a) Subject to the provisions of this Agreement, you may elect at
any time during your Continuous Status as an Employee, Consultant or Director to
exercise this option as to any part or all of the shares subject to this option
at any time during the term hereof, including, without limitation, a time prior
to the date of earliest exercise (vesting) stated in paragraph 1 hereof;
provided that:
(i) a partial exercise of this option shall be deemed to cover first
vested shares and then unvested shares next vesting;
(ii) any shares so purchased that shall not have vested as of the date
of exercise shall be subject to the purchase option in favor of the Company as
described in the Early Exercise Stock Purchase Agreement available from the
Company; and
(iii) you shall enter into an Early Exercise Stock Purchase Agreement in
the form available from the Company with a vesting schedule that will result in
the same vesting as if no early exercise had occurred.
(b) The election provided in this paragraph 3 to purchase shares on the
exercise of this option prior to the vesting dates shall cease on termination of
your Continuous Status as an Employee, Consultant or Director and may not be
exercised from or after the date thereof.
4. This option may not be exercised for any number of shares that would
require the issuance of anything other than whole shares.
5. Notwithstanding anything to the contrary herein, this option may not
be exercised unless the shares issuable on exercise of this option are then
registered under the Act or, if such shares are not then so registered, the
Company shall have determined that such exercise and issuance would be exempt
from the registration requirements of the Act.
6. The term of this option commences on the date hereof and, unless
sooner terminated as set forth below or in the Plan, terminates on ____________
(which date shall be no more than ten years from the date this option is
granted). In no event may this option be exercised on or after the date on which
it terminates. This option shall terminate prior to the expiration of its term
on the day after the termination of your Continuous Status as an Employee,
Consultant or Director for any reason or for no reason, unless:
(a) such termination is due to your retirement or Disability and you do
not die within the three months after such termination, in which event the
option shall terminate on the earlier of the termination date set forth above or
six months after such termination of your Continuous Status as an Employee,
Consultant or Director; or
(b) such termination is due to your death, or such termination is due to
your retirement or Disability and you die within three months after such
termination, in which event the option shall terminate on the earlier of the
termination date set forth above or the first anniversary of your death.
Notwithstanding any of the foregoing provisions to the contrary however,
this option may be exercised following termination of your Continuous Status as
an Employee, Consultant or
Page-2 Annex B
<PAGE> 20
Director only as to that number of shares as to which it shall have been
exercisable under paragraph 1 of this Agreement on the date of such termination.
7. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to subsection 5(f)
of the Plan.
(b) By exercising this option you agree that:
(i) the Company may require you to enter into an arrangement providing
for the cash payment by you to the Company of any tax withholding obligation of
the Company arising by reason of: (1) the exercise of this option; (2) the lapse
of any substantial risk of forfeiture to which the shares are subject at the
time of exercise; or (3) the disposition of shares acquired on such exercise;
and
(ii) the Company (or a representative of the underwriters) may, in
connection with an underwritten registration of the offering of any securities
of the Company under the Act, require that you not sell or otherwise transfer or
dispose of any shares of Stock or other securities of the Company during such
period (not to exceed 180 days) following the effective date (the "Effective
Date") of the registration statement of the Company filed under the Act as may
be requested by the Company or the representative of the underwriters. For
purposes of this restriction, you will be deemed to own securities which (1) are
owned directly or indirectly by you, including securities held for your benefit
by nominees, custodians, brokers or pledgees; (2) may be acquired by you within
sixty days of the Effective Date; (3) are owned directly or indirectly, by or
for your brothers or sisters (whether by whole or half blood) spouse, ancestors
and lineal descendants; or (4) are owned, directly or indirectly, by or for a
corporation, partnership, estate or trust of which you are a shareholder,
partner or beneficiary, but only to the extent of your proportionate interest
therein as a shareholder, partner or beneficiary thereof. You further agree that
the Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such period.
8. You hereby represent and warrant to and agree with the Company as
follows:
(a) You have been granted access to, and have reviewed carefully, the
Plan and such records of the Company as may be necessary to permit you to
evaluate the option and, before any exercise of the option, you will review such
records of the Company as may be necessary to permit you to evaluate the merits
and risks of an investment in Stock. You are entering into this Agreement and
the transactions contemplated hereby solely in reliance on your own
investigation and such review. You have had an opportunity to meet with the
officers of the Company subsequent to review of such information to discuss with
them your questions concerning the Company and the terms and conditions of the
acquisitions hereunder.
(b) You are acquiring the option and will acquire the Stock, if at all,
pursuant to this Agreement with your own funds, and not with the funds of anyone
else. You are acquiring the option and will acquire the Stock, if at all, for
your own account, not as a nominee or agent and not for the account of any other
person or firm. No one else has or will have on any exercise of the option any
interest, beneficial or otherwise, in the option or, on the exercise of the
Page-3 Annex B
<PAGE> 21
option, in any of the shares of Stock to be acquired on such exercise. You are
not, and prior to any exercise of the option will not be, obligated to transfer
the option or any Stock or any interest therein to anyone else, and you do not
and will not have any agreement or understanding to do so. You are acquiring the
option and will purchase Stock on the exercise hereof, if at all, for investment
for an indefinite period and not with a view to the sale or distribution of the
option or any Stock or any part or all thereof, by public or private sale or
other disposition, and you have no intention of selling, granting any
participation in or otherwise distributing or disposing of any or all of the
option or any Stock or any interest therein. You do not, and on any exercise of
the option will not, intend to subdivide the option or any shares purchased on
exercise thereof with anyone.
(c) You have such knowledge and experience in financial and business
matters that the you are capable of evaluating the merits and risks of the
prospective investment contemplated by this Agreement, and you have carefully
reviewed and will carefully review all the information regarding the Company,
access to which has been and will be accorded to you hereunder, are thoroughly
familiar with the business, operations and properties of the Company by virtue
of such review and of your relationship with the Company and have discussed with
the officers of the Company any questions you have with respect to the Company.
(d) Without in any way limiting your representations as set forth
herein, you further agree that you shall in no event make any disposition of all
or any part of or interest in the Stock or the option and that the Stock and the
option shall not be encumbered, pledged, hypothecated, sold, assigned or
transferred by you nor shall you receive any consideration for the option or any
Stock or for any interest therein from any person, unless and until prior to any
proposed encumbrance, pledge, hypothecation, sale, assignment, transfer or other
disposition of the option or any Stock, either (i) a registration statement on
Form S-1 (or any other form replacing such form or appropriate for the purpose
under the Act) with respect to the option or the Stock, as the case may be,
proposed to be transferred or otherwise disposed of shall be then effective or
(ii)(1) you have notified the Company of the proposed disposition and have
furnished the Company with a detailed statement of the circumstances surrounding
the proposed disposition, (2) you have furnished the Company with an opinion of
counsel (obtained at your expense) in form and substance satisfactory to the
Company to the effect that such disposition will not require registration of the
option or any Stock, as the case may be, under the Act or qualification of the
option or any Stock, as the case may be, under any other securities law and (3)
counsel for the Company shall have concurred in such opinion and the Company
shall have advised you of such concurrence.
(e) If the Company proposes to sell Stock in a public offering
registered under the Act or exempt from registration under the Act, the
administrators of the securities laws of certain states may require as a
condition of registration or such exemption that some or all of the Shares be
deposited in an escrow or be subject to waivers of rights to dividends and
assets on liquidation, or both, for an extended period of time, subject to
release if specified financial or market requirements are met and partial
cancellation if such requirements are not met. You agree that you will enter
into any such escrow or waiver agreement that the Company may consider necessary
for the successful completion of such public offering.
(f) If, in the opinion of counsel for the Company, you at any time act
in any manner not consistent with your representations, warranties and
agreements in this Agreement, the Company may refuse to transfer the option or
any Stock until such time as counsel for the
Page-4 Annex B
<PAGE> 22
Company is of the opinion that such transfer may be effected in compliance with
all provisions of this Agreement and such transfer will not require registration
of the option or any Stock under the Act or qualification of the option or any
Stock under any other securities law.
(g) You hereby agree to indemnify and defend the Company and its
directors, officers, employees and agents and hold them harmless from and
against any and all claims, liabilities, damages or expenses incurred on account
of or arising out of (i) any inaccuracy in or breach of any of your
representations, warranties or agreements in this Agreement, including, without
limitation, the defense of any claim based on any allegation of fact
inconsistent with any of such representations, warranties or agreements; (ii)
the disposition of the option or any Stock that you may receive, contrary to any
of such representations, warranties and agreements; or (iii) any action, suit or
proceeding based on a claim that any of such representations, warranties or
agreements were inaccurate or misleading or otherwise cause for obtaining
damages or redress from the Company under the Act or any other securities law.
(h) Certificates representing any Stock received on exercise of the
option will bear a legend on the face thereof (or on the reverse thereof with a
reference to such legend on the face thereof) substantially in the form set
forth below, which legend restricts the sale, transfer or disposition of the
Stock otherwise than in accordance with this Agreement:
SALE, TRANSFER, ENCUMBRANCE, HYPOTHECATION, GIFT OR OTHER DISPOSITION OR
ALIENATION OF SUCH SHARES OR ANY INTEREST THEREIN IS RESTRICTED BY AND SUBJECT
TO A NONQUALIFIED STOCK OPTION AGREEMENT DATED ___________________, 199___, A
COPY OF WHICH MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE CORPORATION AND
ALL OF THE PROVISIONS OF WHICH ARE INCORPORATED BY REFERENCE IN THIS
CERTIFICATE.
(i) The Company may require you to furnish to the Company, prior and as
a condition to the issuance of any Stock on any exercise of the option, an
agreement (in such form as the Company may specify) in which you confirm the
foregoing representations, warranties and agreements or make similar or
additional representations, warranties and agreements with respect to such
Stock.
9. This option is generally not transferable, except by will or by the
laws of descent and distribution, unless the Company expressly permits a
transfer, such as to a trust or other entity for estate planning purposes.
Unless the Company approves such a transfer, this option is exercisable during
your life only by you.
10. This Agreement is not an employment contract and nothing in this
Agreement shall be deemed to create in any way whatsoever any obligation on your
part to continue in the employ of the Company, or of the Company to continue
your employment with the Company. If this option is granted to you in connection
with your performance of services as a Consultant or Director, references to
employment, Employee and similar terms shall be deemed to include the
performance of services as a Consultant or a Director, as the case may be;
provided that no rights as an Employee shall arise by reason of the use of such
terms.
11. Any notice or other communication to be given under or in
connection with this Agreement or the Plan shall be given in writing and shall
be deemed effectively given on receipt or, in the case of notices from the
Company to you, five days after deposit in the United States
Page-5 Annex B
<PAGE> 23
mail, postage prepaid, addressed to you at the address specified below or at
such other address as you may hereafter designate by notice to the Company.
12. This Agreement is subject to all provisions of the Plan, a copy of
which is attached hereto and made a part of this Agreement, including, without
limitation, the provisions of section 5 of the Plan relating to option
provisions, and is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted pursuant to
the Plan. In the event of any conflict between the provisions of this Agreement
and those of the Plan, the provisions of the Plan shall control.
WASTE CONNECTIONS, INC.
By
---------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
First Amended and Restated
1997 Stock Option Plan
Notice of Exercise
Page-6 Annex B
<PAGE> 24
The undersigned:
Acknowledges receipt of the foregoing Nonqualified Stock Option Agreement and
the attachments referenced therein and understands that all rights and
liabilities with respect to the option granted under the Agreement are set forth
in such Agreement and the Plan; and
Acknowledges that as of the date of grant set forth in such Agreement, the
Agreement sets forth the entire understanding between the undersigned optionee
and the Company and its Subsidiaries regarding the acquisition of Stock pursuant
to the option and supersedes all prior oral and written agreements on that
subject with the exception of (i) the options, if any, previously granted and
delivered to the undersigned under stock option plans of the Company, and (ii)
the following agreements only:
NONE: ______________________
(Initial)
OTHER: _____________________________ _____________________________
_____________________________
_____________________________
OPTIONEE
Address:
____________________
____________________
____________________
Page-7 Annex B
<PAGE> 25
NOTICE OF EXERCISE
Waste Connections, Inc.
2260 Douglas Blvd., Suite 280
Roseville, CA 95661 Date of Exercise: __________
Ladies and Gentlemen:
This constitutes notice under my Incentive Stock Option Agreement or
Nonqualified Stock Option Agreement (as indicated below) that I elect to
purchase the number of shares of Common Stock ("Stock") of Waste Connections,
Inc. (the "Company") for the price set forth below.
<TABLE>
<S> <C> <C>
Type of Option Agreement (check one): Incentive Nonqualified
Option Agreement dated: _______________________
Number of shares as
to which option is
exercised: _______________________
Certificates to be
issued in name of: _______________________
Total exercise price: $______________________
Cash payment delivered
herewith: $______________________
Value of __________ shares
of _________________ common
stock delivered herewith:(2) $______________________
</TABLE>
By this exercise, I agree (i) to provide such additional documents as
you may require pursuant to the terms of the Waste Connections, Inc. First
Amended and Restated 1997 Stock Option Plan or the Option Agreement, (ii) to
provide for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to notify you in
writing within fifteen days after the date of any disposition of any of the
shares of Stock issued on exercise of this option that occurs within two years
after the date of grant of this option or within one year after such shares of
Stock are issued on exercise of this option.
I hereby reaffirm all of my representations, warranties and agreements
contained in such Option Agreement as if made on and as of the date hereof, and
I hereby further represent
- --------------
(2) Shares must meet the public trading requirements set forth in the Option
Agreement. Shares must be valued in accordance with the terms of the option
being exercised, must have been owned for the minimum period required in the
Option Agreement, and must be owned free and clear of any liens, claims,
encumbrances or security interests. Certificates must be endorsed or accompanied
by an executed assignment separate from certificate.
Page-8 Annex B
<PAGE> 26
and warrant to you that I have recently consulted with my personal tax,
accounting and other advisers with regard to this option exercise; provided that
if a registration statement covering the Stock is currently in effect under the
Securities Act of 1933, as amended (the "Securities Act"), I am not required to
reaffirm my representations, warranties and agreements contained in sections
8(a)-(e) of the Option Agreement.
I hereby represent, warrant and agree with respect to the shares of
Stock of the Company that I am acquiring by this exercise of the option (the
"Shares") that, if required by the Company (or a representative of the
underwriters) in connection with an underwritten registration of the offering of
any securities of the Company under the Securities Act, I will not sell or
otherwise transfer or dispose of any shares of Stock or other securities of the
Company during such period (not to exceed 180 days) following the effective date
of the registration statement of the Company filed under the Securities Act (the
"Effective Date") as may be requested by the Company or the representative of
the underwriters. For purposes of this restriction, I will be deemed to own
securities that (i) are owned, directly or indirectly by me, including
securities held for my benefit by nominees, custodians, brokers or pledgees;
(ii) may be acquired by me within sixty days of the Effective Date; (iii) are
owned directly or indirectly, by or for my brothers or sisters (whether by whole
or half blood), spouse, ancestors and lineal descendants; or (iv) are owned,
directly or indirectly, by or for a corporation, partnership, estate or trust of
which I am a shareholder, partner or beneficiary, but only to the extent of my
proportionate interest therein as a shareholder, partner or beneficiary thereof.
I further agree that the Company may impose stop-transfer instructions with
respect to securities subject to this restriction until the end of such period.
Very truly yours,
___________________________________
Page-9 Annex B
<PAGE> 1
EXHIBIT 5.1
February 9, 1999
Waste Connections, Inc.
2260 Douglas Blvd., Suite 280
Roseville, CA 95661
Re: Waste Connections, Inc. Registration Statement on
Form S-8 for the First Amended and Restated 1997 Stock Option
Plan
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 filed
by Waste Connections, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission in connection with the proposed issuance and
sale by the Company of an additional 820,132 shares of Company's Common Stock,
par value $0.01 per share (the "Common Stock"). As counsel for the Company in
connection with the registration, we render the opinion set forth below.
We have examined, and are familiar with, originals or copies,
certified or otherwise authenticated to our satisfaction, of documents,
corporate records and other writings which we consider relevant for the purpose
of this opinion. We have also reviewed the Amended and Restated Certificate of
Incorporation, the Amended and Restated Bylaws and pertinent resolutions of the
Board of Directors of the Company. In addition, we have ascertained or verified
other facts which we deem relevant for the purpose of this opinion.
In connection with this examination, we have assumed the
genuineness of all signatures on original documents, the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof, and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
Based upon the foregoing, and such other legal considerations as
we deem appropriate, we are of the opinion that:
The additional 820,132 shares of Common Stock proposed to be
sold by the Company under the terms of the Company's First Amended and Restated
1997 Stock Option Plan (the "Plan"), when sold and issued in accordance with the
terms of the Plan, will be validly issued, fully paid and non-assessable.
Page-1 Exhibit 5.1
<PAGE> 2
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
SHARTSIS, FRIESE & GINSBURG LLP
/s/ Shartsis, Friese & Ginsburg LLP
Page-2 Exhibit 5.1
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference of our reports listed below
included in the Waste Connections, Inc. Registration Statement on Form S-1 (No.
333-70253, as amended) filed with the Securities and Exchange Commission, in the
Registration Statement (Form S-8) pertaining to the Waste Connections, Inc.
First Amended and Restated 1997 Stock Option Plan:
Report dated March 6, 1998 with respect to the financial statements of
Waste Connections, Inc. and Predecessors;
Report dated October 2, 1998 (except for Note 12, as to which the date
is October 22, 1998) with respect to the combined financial statements
of The Murrey Companies (which consist of Murrey's Disposal Company,
Inc., American Disposal Company, Inc., D.M. Disposal Co., Inc. and
Tacoma Recycling Company, Inc.);
Report dated February 20, 1998 with respect to the financial statements
of Madera Disposal Systems, Inc.;
Report dated July 8, 1998 with respect to the financial statements of
Arrow Sanitary Service, Inc.;
Report dated August 26, 1998 with respect to the financial statements of
Contractors Waste Removal, L.C.;
Report dated July 31, 1998 with respect to the consolidated financial
statements of Curry Transfer and Recycling, Inc;
Report dated December 30, 1998 with respect to the combined financial
statements of Butler County Landfill, Inc. and Kobus Construction, Inc;
and
Report dated January 19, 1999 with respect to the Supplemental
Consolidated Financial Statements of Waste Connections, Inc. and
Predecessors.
Our audits also included the financial statement schedule of Waste Connections,
Inc. and Predecessors listed in Item 16(b) of the Registration Statement on Form
S-1 (No. 333-70253, as amended). This schedule is the responsibility of the
Company's management. Our responsibility is to express an opinion based on our
audits. In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
We also consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Waste Connections, Inc. First Amended and Restated
1997 Stock Option Plan of our report dated October 2, 1998 (except for Note 12,
as to which the date is October 22, 1998) with respect to the combined financial
statements of The Murrey Companies (which consist of Murrey's Disposal Company,
Inc., American Disposal Company, Inc., D.M. Disposal Co., Inc. and Tacoma
Recycling Company, Inc.) included in the Current Report on Form 8-K dated
February 1, 1999 of Waste Connections, Inc., filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Sacramento, California
February 8, 1999
Page-1 Exhibit 23.1
<PAGE> 1
EXHIBIT 23.3
CONSENT OF PRICEWATERHOUSECOOPERS LLP, INDEPENDENT AUDITORS
We consent to the inclusion in this registration statement on Form S-8 of Waste
Connections, Inc. for the registration of an additional 820,132 shares of
common stock of our report dated December 30, 1998, on our audit of the
combined financial statements of Amador Disposal Services, Inc. and Mother Lode
SaniHut, Inc. We also consent to the reference to our firm under the caption
"Experts".
/s/ PricewaterhouseCoopers LLP
Sacramento, California
February 10, 1999
Page-1 Exhibit 23.3
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our reports dated August 24, 1998, October 1, 1998 and October
7, 1998, accompanying the financial statements of Shrader Refuse and Recycling
Service Company, B&B Sanitation, and J & J Sanitation, respectively. These
reports and financial statements are contained in the Amendment No. 2 to the
Registration Statement (Form S-1 No. 333-70253) and related Prospectus of Waste
Connections, Inc. and are incorporated by reference in this Registration
Statement. We hereby consent to the incorporation by reference of said reports
in the Registration Statement of Waste Connections, Inc. on Form S-8.
GRANT THORNTON LLP
Lincoln, Nebraska
February 8, 1999
Page-1 Exhibit 23.4
