<PAGE>
As filed with the Securities and Exchange Commission on December 5, 1997
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
COMMODORE ENVIRONMENTAL SERVICES, INC.
(Exact name of issuer as specified in its charter)
Delaware 87-0275043
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 East 58th Street, Suite 3400 10155
New York, New York (Zip Code)
(Address of Principal Executive Offices)
1987 Stock Option Plan of Commodore Resources Corporation
Commodore Environmental Services, Inc. 1997 Stock Option Plan
Non-Qualified Stock Option Agreement, dated as of July 28, 1993
Non-Qualified Stock Option Agreement, dated as of November 22, 1993
Non-Qualified Stock Option Agreement, dated as of August 31, 1995
Non-Qualified Stock Option Agreement, dated as of February 16, 1996
Non-Qualified Stock Option Agreement, dated as of June 17, 1997
Non-Qualified Stock Option Agreement, dated as of November 1, 1997
Amended and Restated Non-Qualified Stock Option Agreement,
dated as of January 2, 1996
Director Compensation Agreements, dated February 20, 1996
Advisory Agreement, dated February 20, 1996
Advisory Agreements, dated February 22, 1996
Advisory Agreement, dated March 7, 1996
(Full title of the plan)
PAUL E. HANNESSON
Chairman of the Board, President and Chief Executive Officer
Commodore Environmental Services, Inc.
150 East 58th Street, Suite 3400
New York, New York 10155
(Name and address of agent for service)
(212) 308-5800
(Telephone number, including area code, of agent for service)
Copies of communications to:
STEPHEN A. WEISS, ESQ.
ANTHONY J. MARSICO, ESQ.
Greenberg Traurig Hoffman
Lipoff Rosen & Quentel
153 East 53rd Street
New York, New York 10022
Tel: (212) 801-9200
Fax: (212) 223-7161
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of to be offering price aggregate registration
securities to be registered registered(1) per share offering price fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share . 8,765,000 shares(2) $0.64(3) $ 5,609,600.00 $1,654.83
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share . 12,590,000 shares(4) $0.58(5) $ 7,302,200.00 $2,154.15
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share . 790,000 shares(6) $0.58(7) $ 458,200.00 $ 135.17
- ----------------------------------------------------------------------------------------------------------------------
TOTAL: ................................ 22,145,000 shares $13,370,000.00 $3,944.15
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(Footnotes on the following page)
================================================================================
<PAGE>
(1) Pursuant to Rule 416(a), the number of shares of Common Stock being
registered shall be adjusted to include any additional shares which may
become issuable as a result of stock splits, stock dividends, or similar
transactions in accordance with the anti-dilution provisions of: (i) the
Commodore Environmental Services, Inc. 1997 Stock Option Plan (the "1997
Plan"); (ii) the Non-Qualified Stock Option Agreements, dated as of July
28 and November 22, 1993, as of August 31, 1995, as of February 16, 1996,
and as of June 17 and November 1, 1997; (iii) the Amended and Restated
Non-Qualified Stock Option Agreement, dated as of January 2, 1996; (iv)
the Director Compensation Agreements, dated February 20, 1996; and (v) the
Advisory Agreements, dated February 20 and 22, and March 7, 1996.
(2) Includes: (i) an aggregate of 5,410,000 shares of Common Stock (subject to
adjustment) issuable upon exercise of currently outstanding options
granted under the 1997 Plan; (ii) an aggregate of 1,000,000 shares of
Common Stock (subject to adjustment) issuable upon exercise of currently
outstanding options granted pursuant to a Non-Qualified Stock Option
Agreement, dated as of July 28, 1993, by and between Commodore
Environmental Services, Inc. (the "Company") and Albert E. Abel; (iii) an
aggregate of 100,000 shares of Common Stock (subject to adjustment)
issuable upon exercise of currently outstanding options granted pursuant
to a Non-Qualified Stock Option Agreement, dated as of November 22, 1993,
by and between the Company and James M. DeAngelis; (iv) an aggregate of
150,000 shares of Common Stock (subject to adjustment) issuable upon
exercise of currently outstanding options granted pursuant to a
Non-Qualified Stock Option Agreement, dated as of August 31, 1995, by and
between the Company and Carl O. Magnell; (v) an aggregate of 500,000
shares of Common Stock (subject to adjustment) issuable upon exercise of
currently outstanding options granted pursuant to a Non-Qualified Stock
Option Agreement, dated as of February 16, 1996, by and between the
Company and Paul E. Hannesson; (vi) an aggregate of 750,000 shares of
Common Stock (subject to adjustment) issuable upon exercise of currently
outstanding options granted pursuant to a Non-Qualified Stock Option
Agreement, dated as of June 17, 1997, by and between the Company and Edwin
L. Harper; (vii) an aggregate of 25,000 shares of Common Stock (subject to
adjustment) issuable upon exercise of currently outstanding options
granted pursuant to a Non-Qualified Stock Option Agreement, dated as of
November 1, 1997, by and between the Company and Geoffrey Tirman; (viii)
an aggregate of 275,000 shares of Common Stock (subject to adjustment)
issuable upon exercise of currently outstanding options granted pursuant
to an Amended and Restated Non-Qualified Stock Option Agreement, dated as
of January 2, 1996, by and between the Company and Stephen A. Weiss; (ix)
an aggregate of 105,000 shares of Common Stock (subject to adjustment)
issuable upon exercise of currently outstanding options granted pursuant
to a Director Compensation Agreement, dated February 20, 1996, by and
between the Company and David L. Mitchell; (x) an aggregate of 105,000
shares of Common Stock (subject to adjustment) issuable upon exercise of
currently outstanding options granted pursuant to a Director Compensation
Agreement, dated February 20, 1996, by and between the Company and Herbert
A. Cohen; (xi) an aggregate of 105,000 shares of Common Stock (subject to
adjustment) issuable upon exercise of currently outstanding options
granted pursuant to a Director Compensation Agreement, dated February 20,
1996, by and between the Company and Kenneth L. Adelman; (xii) an
aggregate of 60,000 shares of Common Stock (subject to adjustment)
issuable upon exercise of currently outstanding options granted pursuant
to an Advisory Agreement, dated February 20, 1996, by and between the
Company and Edward L. Rowny; (xiii) ) an aggregate of 60,000 shares of
Common Stock (subject to adjustment) issuable upon exercise of currently
outstanding options granted pursuant to an Advisory Agreement, dated
February 22, 1996, by and between the Company and Misha Krakowsky; (xiv)
an aggregate of 60,000 shares of Common Stock (subject to adjustment)
issuable upon exercise of currently outstanding options granted pursuant
to an Advisory Agreement, dated February 22, 1996, by and between the
Company and Noel Brown; and (xv) an aggregate of 60,000 shares of Common
Stock (subject to adjustment) issuable upon exercise of currently
outstanding options granted pursuant to an Advisory Agreement, dated March
7, 1996, by and between the Company and Oliver Giscard d'Estaing.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. Represents the weighted average exercise price (rounded to the
nearest cent) at which the shares will be issued.
(4) Represents the aggregate number of shares underlying options presently
available for issuance under the 1997 Plan.
(5) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, solely for the purpose of calculating the total
registration fee. Represents the average of the high and low prices
(rounded to the nearest cent) of the Common Stock as reported on the OTC
Bulletin Board of the National Association of Securities Dealers, Inc.
(the "OTCBB") on December 1, 1997, because the exercise price at which the
shares will be issued in the future is not currently determinable.
(6) Includes: (i) 300,000 shares heretofore issued upon exercise of options
granted under the 1987 Stock Option Plan of Commodore Resources
Corporation (the "1987 Plan"), which expired by its terms in 1992; (ii)
400,000 shares heretofore issued upon exercise of options granted under
the Non-Qualified Stock Option Agreement, dated as of November 22, 1993,
by and between the Company and James M. DeAngelis; and (iii) 90,000 shares
heretofore issued upon exercise of options granted under the Non-Qualified
Stock Option Agreement, dated as of August 31, 1995, by and between the
Company and Carl O. Magnell.
(7) Computed in accordance with Rule 457(c) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. Represents the average of the high and low prices (rounded to the
nearest cent) of the Common Stock as reported on the OTCBB on December 1,
1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such
documents are not required to be and are not filed with the Securities and
Exchange Commission either as part of this Registration Statement, or as a
prospectus or prospectus supplement pursuant to Rule 424. These documents and
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
The following reoffer prospectus filed as part of the Registration
Statement has been prepared in accordance with the requirements of Part I of
Form S-3 and, pursuant to General Instruction C of Form S-8, may be used by
certain officers, directors and controlling stockholders of the Company for the
resale to the public of shares of common stock, par value $.01 per share (the
"Common Stock"), of Commodore Environmental Services, Inc. (the "Company") to be
issued to them upon exercise of options heretofore or hereafter granted under:
(i) the Commodore Environmental Services, Inc. 1997 Stock Option Plan; (ii) the
Non-Qualified Stock Option Agreement, dated as of February 16, 1996, by and
between the Company and Paul E. Hannesson; (iii) the Non-Qualified Stock Option
Agreement, dated as of June 17, 1997, by and between the Company and Edwin L.
Harper; and (iv) the Director Compensation Agreements, dated February 20, 1996,
by and between the Company and each of David L. Mitchell, Herbert A. Cohen and
Kenneth L. Adelman. Such persons may be deemed to be in a control relationship
with the Company within the meaning of the Securities Act and the rules and
regulations of the Commission promulgated thereunder, and such shares of Common
Stock may be deemed to be "control securities" within the meaning of General
Instruction C to Form S-8. The following reoffer prospectus may also be used for
the resale to the public of an aggregate of 790,000 shares of Common Stock
heretofore issued upon exercise of options granted under: (a) the 1987 Stock
Option Plan of Commodore Resources Corporation; (b) the Non-Qualified Stock
Option Agreement, dated as of November 22, 1993, by and between the Company and
James M. DeAngelis; and (c) the Non-Qualified Stock Option Agreement, dated as
of August 31, 1995, by and between the Company and Carl O. Magnell. Such shares
of Common Stock may be deemed to be "restricted securities" within the meaning
of General Instruction C to Form S-8. The 1987 Stock Option Plan of Commodore
Resources Corporation expired by its terms in 1992.
I-1
<PAGE>
PROSPECTUS
7,765,000 Shares
Commodore Environmental Services, Inc.
Common Stock
---------------------
This Prospectus relates to 7,765,000 shares of common stock, par value
$.01 per share (the "Common Stock"), of Commodore Environmental Services, Inc.,
a Delaware corporation (the "Company"), which may be offered and sold from time
to time pursuant to this Prospectus (the "Shares") by the persons named in this
Prospectus as "Selling Stockholders" (the "Selling Stockholders"). The Selling
Stockholders have acquired or will acquire the Shares upon exercise of options
granted under: (i) the 1987 Stock Option Plan of Commodore Resources
Corporation (the "1987 Plan"); (ii) the Commodore Environmental Services, Inc.
1997 Stock Option Plan (the "1997 Plan"); (iii) the Non-Qualified Stock Option
Agreement, dated as of November 22, 1993, by and between the Company and James
M. DeAngelis (the "DeAngelis Stock Option Agreement"); (iv) the Non-Qualified
Stock Option Agreement, dated as of August 31, 1995, by and between the Company
and Carl O. Magnell (the "Magnell Stock Option Agreement"); (v) the
Non-Qualified Stock Option Agreement, dated as of February 16, 1996, by and
between the Company and Paul E. Hannesson (the "Hannesson Stock Option
Agreement"); (vi) the Non-Qualified Stock Option Agreement, dated as of June 17,
1997, by and between the Company and Edwin L. Harper (the "Harper Stock Option
Agreement"); and (vii) the Director Compensation Agreements, dated February 20,
1996, by and between the Company and each of David L. Mitchell, Herbert A.
Cohen and Kenneth L. Adelman (individually, a "Director Compensation Agreement"
and collectively, the "Director Compensation Agreements"). See "SELLING
STOCKHOLDERS."
The Shares offered hereby may be sold from time to time by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest, in one or more transactions (which may involve one or more block
transactions) in the over-the-counter market, in transactions independent of
the over-the-counter market, in separately negotiated transactions, or in a
combination of such transactions. Such sales may be made either at fixed prices
which may be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated prices. Some or all
of the Shares may be sold through brokers acting on behalf of the Selling
Stockholders or to dealers for resale by such dealers, and in connection with
such sales, such brokers or dealers may receive compensation in the form of
discounts or commissions from the Selling Stockholders and/or the purchasers of
such Shares for whom they may act as broker or agent (which discounts or
commissions may be less than, or in excess of, those customary in the types of
transactions involved). In addition, any Shares covered by this Prospectus that
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this Prospectus. See "PLAN OF
DISTRIBUTION."
The Shares will be sold, or otherwise disposed of, for the account of the
Selling Stockholders, and the Company will not be entitled to any of the
proceeds from such sales or dispositions. See "USE OF PROCEEDS." All expenses
incurred in connection with the registration of the Shares are being borne by
the Company, but all brokerage commissions and other expenses incurred by
individual Selling Stockholders will be borne by each such Selling Stockholder.
See "PLAN OF DISTRIBUTION."
<PAGE>
The Selling Stockholders and any dealer participating in the distribution
of any Shares or any broker executing selling orders on behalf of the Selling
Stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or commissions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act. See "PLAN OF DISTRIBUTION."
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker or dealer for the sale of
Shares through a block trade, special offering or secondary distribution, or a
purchase by a broker or dealer, a supplement to this Prospectus will be filed,
if required, pursuant to Rule 424(b) under the Securities Act, disclosing (a)
the name of each such Selling Stockholder and of the participating broker or
dealer, (b) the number of Shares involved, (c) the price at which such Shares
were sold, (d) the commissions paid or the discounts or concessions allowed to
such broker or dealer, where applicable, (e) that such broker or dealer did not
conduct any investigation to verify the information set out or incorporated by
reference in this Prospectus, and (f) other facts material to the transaction.
See "PLAN OF DISTRIBUTION."
There is no assurance that any of the Selling Stockholders will sell any
or all of the Shares. The Company's Common Stock is currently traded in the
over-the-counter market in the so-called "pink sheets" of the National
Quotation Bureau, Inc. (the "Pink Sheets") and is quoted in the OTC Bulletin
Board of the National Association of Securities Dealers, Inc. (the "OTCBB")
under the symbol "COES". On December 1, 1997, the last reported sale price of
the Common Stock on the OTCBB was $0.59375 per share. Prospective investors are
urged to obtain a current price quotation.
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 5 OF THIS PROSPECTUS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is December 5, 1997.
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, AND ANY INFORMATION OR REPRESENTATION NOT
CONTAINED OR INCORPORATED HEREIN BY REFERENCE MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY, THE SELLING STOCKHOLDERS OR ANY OTHER PERSON.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY BY ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH
PERSON TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS AT ANY TIME NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE
IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE
DATE HEREOF.
---------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed with the Commission, as well as the
Registration Statement (as defined below) of which this Prospectus is a part,
may be inspected and copied at the public reference facilities of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center, 13th Floor, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60601-2511. Copies of such material also can be
obtained by mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Also, the
Company files such reports, proxy statements and other information with the
Commission pursuant to the Commission's EDGAR system. The Commission maintains
a web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
pursuant to the EDGAR system. The address of the Commission's web site is
"http://www.sec.gov".
This Prospectus constitutes a part of a Registration Statement on Form S-8
(the "Registration Statement") filed by the Company on December 5, 1997 with
the Commission under the Securities Act. As permitted by the rules and
regulations of the Commission, this Prospectus omits certain information
contained in the Registration Statement and incorporates by reference certain
additional information. Such additional information can be inspected at and
obtained from the Commission in the manner set forth above. Statements
contained in this Prospectus or in any document incorporated herein by
reference as to the terms of any contract or other document referred to herein
or therein are not necessarily complete, and in each instance reference is made
to the copy of such contract or other document filed as an exhibit to the
Registration Statement or such other document, each such statement being
qualified in all respects by such reference.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission (File No. 0-10054) under the Exchange Act are incorporated herein by
reference:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1997;
(c) The Company's Current Reports on Form 8-K dated January 22, May 20,
and July 3, 1997;
(d) Amendment No. 1 on Form 8-K/A to the Company's Current Report on Form
8-K dated January 22, 1997, filed with the Commission on March 27,
1997;
(e) Amendment No. 1 on Form 8-K/A to the Company's Current Report on Form
8-K dated May 20, 1997, filed with the Commission on October 3, 1997;
(f) The Company's definitive Proxy Statement, dated August 20, 1997, filed
in connection with the Company's 1997 Annual Meeting of Stockholders
held on September 12, 1997; and
(g) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated December 2, 1981,
filed under Section 12 of the Exchange Act, including any subsequent
amendment or any report or other filing with the Commission updating
such description.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment to the Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus. All
information appearing in this Prospectus is qualified in its entirety by the
information and financial statements (including the notes thereto) appearing in
the documents incorporated herein by reference, except to the extent set forth
in the immediately preceding sentence.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of the Registration Statement (which documents
are incorporated by reference in this Section 10(a) Prospectus), other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference herein), as well as other documents required to be delivered to
employees pursuant to Rule 428(b), will be provided without charge to each
person (including any beneficial owner) to whom this Prospectus is delivered
upon the written or oral request of such person. Requests should be made to:
Commodore Environmental Services, Inc.
150 East 58th Street, Suite 3400
New York, New York 10155
Attention: Michael D. Fullwood
Telephone: (212) 308-5800
3
<PAGE>
THE COMPANY
The following summary is qualified in its entirety by reference to, and
should be read in conjunction with, the more detailed information appearing
elsewhere in this Prospectus or incorporated herein by reference. Investors
should also carefully consider the information set forth under the heading
"RISK FACTORS." As used herein, the term "Company" refers to Commodore
Environmental Services, Inc. and its subsidiaries.
The Company, through its 65% owned subsidiary, Commodore Applied
Technologies, Inc. ("Applied"), is primarily engaged in (i) the development and
commercialization of a variety of environmental technologies for the
destruction of hazardous materials, (ii) providing environmental, technical and
remediation services, and (iii) the separation and recovery of metals, organics
and other chemical compounds.
o Decontamination and Neutralization of Hazardous Materials. Commodore Solution
Technologies, Inc. ("Solution"), a wholly owned subsidiary of Applied, uses
a patented non-thermal, portable and scalable process known as SET(TM) for
treating and decontaminating soils and other materials and surfaces
containing PCBs, pesticides, dioxins and other toxic contaminants to an
extent sufficient to satisfy current federal environmental guidelines. Based
on the results of laboratory testing, SET(TM) also appears capable of
neutralizing substantially all known chemical weapons materials and warfare
agents.
o CFC Destruction, Separation and Recycling. Commodore CFC Technologies, Inc.
("CFC"), a wholly owned subsidiary of Applied, is applying certain
environmental technologies to the destruction, separation and recycling of
CFCs and other ozone-depleting substances.
o Environmental, Technical and Remediation Services. Advanced Sciences, Inc.
("ASI"), a wholly owned subsidiary of Solution, provides a full range of
environmental, technical and remediation services, including identification,
investigation, remediation and management of hazardous and mixed waste
sites, to government agencies, including the U.S. Department of Energy and
Department of Defense, and to private-sector domestic and foreign industrial
clients.
o Separation and Recovery Technology. Commodore Separation Technologies, Inc.
("Separation"), an 87% owned subsidiary of Applied, has developed and
intends to commercialize its separation technology and recovery system known
as SLiM(TM) (Supported Liquid Membrane technology). Based on the results of
more than 100 laboratory and other tests to date, the Company believes that
SLiM(TM) can separate and recover solubilized metals (e.g., chromium,
cadmium, silver, mercury, platinum, lead, zinc and nickel), radionuclides,
gas, organics and biochemicals.
The Company believes that its chemical processes and technologies offer a
safe, efficient and cost-effective alternative to traditional methods for the
separation, destruction and disposal of toxic substances, which can be utilized
in a wide variety of industrial, military and other applications. The Company
is currently in the process of introducing these processes and technologies on
a commercial scale. In July 1996, Applied completed an initial public offering
of its equity securities from which it received net proceeds of approximately
$30.5 million. In April 1997, Separation completed an initial public offering
of its equity securities from which it received net proceeds of approximately
$11.1 million.
The Company was reincorporated in the State of Delaware in August 1988.
The principal executive offices of the Company are located at 150 East 58th
Street, Suite 3400, New York, New York 10155, and its telephone number is (212)
308-5800.
4
<PAGE>
RISK FACTORS
The securities offered hereby are highly speculative in nature and involve
a high degree of risk. Prior to making an investment decision, prospective
investors in the Shares offered hereby should give careful consideration to the
information set forth in this Prospectus or incorporated herein by reference
and, in particular, should evaluate the risk factors set forth below.
Limited Current Operating History; History of Losses; Future Losses; Initial
Commercialization Stage
From 1986 to 1990, as a result of a series of acquisitions, the Company
was principally engaged in the asbestos abatement business in the metropolitan
New York City area, upstate New York and California. Primarily due to
inadequate capitalization, the asbestos abatement businesses were repurchased
by their original owners. In 1993, the Company acquired and commenced the
development of technology relating to the destruction and separation of
hazardous materials, which it operates primarily through its Applied
subsidiary. Applied has a limited operating history, consisting primarily of
development of SET(TM) and remediation equipment, conducting laboratory tests,
and planning on-site tests and demonstrations. Separation's SLiM(TM) technology
is also in the early stages of commercialization. Accordingly, the Company is
subject to all of the business risks associated with a new enterprise,
including, but not limited to, risks of unforeseen capital requirements,
failure of market acceptance, failure to establish business relationships, and
competitive disadvantages as against larger and more established companies.
For the fiscal year ended December 31, 1996, the Company had total
revenues of $5,253,000 and a net loss of $8,311,000, compared to total revenues
of $1,044,000 and a net loss of $2,969,000 for the fiscal year ended December
31, 1995. For the nine months ended September 30, 1997, the Company had total
revenues of $15,717,000 and a net loss of $8,704,000, compared to total
revenues of $194,000 and a net loss of $4,305,000 for the nine months ended
September 30, 1996. At December 31, 1996, the Company had stockholders' equity
of $12,831,000, and working capital of $12,995,000, compared to a stockholders'
deficit of $1,429,000 and a working capital deficit of $1,602,000 at December
31, 1995. At September 30, 1997, the Company had stockholders' equity of
$9,052,000, and working capital of $18,723,000.
The Company anticipates that it will continue to incur significant
operating losses through 1997 and may incur additional losses thereafter,
depending upon its ability to consummate collaborative working arrangements or
licenses with third parties and the operation and financial success of any
environmental projects which the Company and its potential working partners may
be awarded. Other than revenues generated by ASI, which Applied acquired
effective October 1, 1996, the Company has generated nominal revenues to date,
and there can be no assurance as to whether or when it will generate material
revenues or achieve profitable operations.
SET(TM) and SLiM(TM) Unproven on Large-Scale Commercial Basis
SET(TM) and SLiM(TM) have never been utilized on a large-scale basis, and
there can be no assurance that such technologies will perform successfully on a
large-scale commercial basis or that they will be profitable to the Company.
The Company has never utilized SET(TM) and SLiM(TM) under the conditions and in
the volumes that will be required to be profitable and cannot predict all of
the difficulties that may arise. In addition, most of the results of the tests
conducted by the Company on SET(TM) and SLiM(TM) have not been verified by an
independent testing laboratory. Thus, it is possible that the Company's SET(TM)
and SLiM(TM) technologies may require further research, development, design and
testing, as well as regulatory clearances, prior to larger-scale
commercialization. Additionally, the Company's ability to operate its business
successfully will depend on a variety of factors, many of which are outside the
Company's control, including competition, cost and availability of supplies,
changes in governmental initiatives and requirements, changes in EPA and other
regulatory requirements, and the costs associated with equipment repair and
maintenance.
No Assurance of Collaborative Agreements, Licenses or Project Contracts
The Company's business strategy is based upon entering into collaborative
joint working arrangements with established engineering and environmental
companies, or formal joint venture agreements relative to the application of
SET(TM) and SLiM(TM) as enabling technologies for specified industries or
markets. To date, only ASI and
5
<PAGE>
its collaborative joint working partners have been awarded project contracts.
There can be no assurance that the Company will enter into any definitive joint
project arrangements or joint venture collaborative agreements with its
prospective working partners or others, or that such agreements, if entered
into, will be on terms and conditions that are sufficiently attractive to the
Company to enable it to generate profits. In the event the Company is unable to
enter into commercially attractive collaborative working arrangements for one
or more commercial or industrial remediation projects, in order to produce
revenues for the Company, it may be necessary to license SET(TM) and/or
SLiM(TM) to unaffiliated third parties. There is no assurance that the Company
will be able to enter into such license arrangements or that such licenses will
produce any income to the Company. Even if the Company is able to complete
additional joint working arrangements, there is no assurance that the Company
and its working partners will be awarded contracts to perform decontamination
or remediation projects. Even if such contracts are awarded, there is no
assurance that these contracts will be profitable to the Company. In addition,
any project contract which may be awarded to the Company and/or any of its
joint working partners may be curtailed, delayed, redirected or eliminated at
any time. Problems experienced on any specific project, or delays in the
implementation and funding of projects, could materially adversely affect the
Company's business and financial condition.
Uncertainty of Market Acceptance
Many prospective users of SET(TM) have already committed substantial
resources to other forms of environmental remediation technology, including
incineration, plasma arc, vitrification, molten metal, molten salt, chemical
neutralization, catalytic electrochemical oxidation and supercritical wet
oxidation. In addition, many prospective users of SLiM(TM) have committed
substantial resources to other forms of process stream treatments or
technologies. The Company's growth and future financial performance will depend
on demonstrating to prospective collaborative partners and users the advantages
of SET(TM), SLiM(TM) and the Company's other environmental technologies over
alternative technologies. There can be no assurance that the Company and its
prospective collaborative partners will be successful in this effort.
Furthermore, it is possible that competing alternatives may be perceived to
have, or may actually have, certain advantages over SET(TM), SLiM(TM) and/or
the Company's other environmental technologies for certain industries or
applications.
Risk of Environmental Liability
The Company's operations, as well as the use of the specialized technical
equipment by its customers, are subject to numerous federal, state and local
regulations relating to the storage, handling, emission and transportation of
certain regulated materials. There is always the risk that such materials might
be mishandled, or that there might be equipment or technology failures, which
could result in significant claims against the Company. Any such claims against
the Company could materially adversely affect the Company's business, financial
condition and results of operations.
As SET(TM), SLiM(TM) and the Company's other environmental technologies
are commercialized, the Company may be required to obtain environmental
liability insurance in the future in amounts greater than those it currently
maintains. There can be no assurance that such insurance will provide coverage
against all claims, and claims may be made against the Company (even if covered
by the Company's insurance policy) for amounts substantially in excess of
applicable policy limits. Any such event could have a material adverse effect
on the Company's business, financial condition and results of operations.
Potential Need for Additional Financing
In May and August 1997, the Company completed private placements of an
aggregate of 88,000 shares of its Series D Preferred Stock and warrants, from
which it received aggregate net proceeds of approximately $7.8 million. The
Company's future capital requirements will depend on certain factors, many of
which are not within the Company's control. These include the ongoing
development and testing of SET(TM), SLiM(TM) and the Company's other
environmental technologies; the nature and timing of remediation and clean-up
projects and permits required; and the availability of financing.
In the environmental remediation market, the Company may not be able to
enter into favorable business collaborations and might thus be required to bid
upon projects for its own account. If such bids were successful, the Company
would be required to make significant expenditures on personnel and capital
equipment which
6
<PAGE>
would require significant financing in amounts substantially in excess of the
net proceeds of the initial public offerings and private placements. In
addition, the Company's lack of operational experience and limited capital
resources could make it difficult, if not highly unlikely, to successfully bid
on major reclamation or clean-up projects. In such event, the Company's
business development could be limited to remediation of smaller commercial and
industrial sites with significantly lower potential for profit.
In addition, the expansion of the Company's business will require the
commitment of significant capital resources toward the hiring of technical and
operational support personnel, the development of a manufacturing and testing
facility for SET(TM) and SLiM(TM) equipment, and the building of equipment to
be used both for on-site test demonstrations and the remediation of
contaminated elements. In the event the Company is presented with one or more
significant reclamation or clean-up projects, individually or in conjunction
with collaborative working partners, it may require additional capital to take
advantage of such opportunities. There can be no assurance that such financing
will be available or, if available, that it will be on favorable terms. If
adequate financing is not available, the Company may be required to delay,
scale back or eliminate certain of its research and development programs, to
relinquish rights to certain of its technologies, or to license third parties
to commercialize technologies that the Company would otherwise seek to develop
itself.
Competition and Technological Alternatives
The Company anticipates that the primary markets for its technologies will
be for hazardous and toxic waste and industrial by-products treatment and
disposal, the destruction or neutralization of chemical weapons materials and
warfare agents, and the concentration of radioactive wastes. The Company has
had limited experience in marketing its technologies and has a small sales and
marketing organization, whereas other participants in both the private and
public sectors include several large domestic and international companies and
numerous small companies, many of whom have substantially greater financial and
other resources and more manufacturing, marketing and sales experience than the
Company. Any one or more of the Company's competitors or other enterprises not
presently known to the Company may develop technologies which are superior to
SET(TM), SLiM(TM) or other technologies utilized by the Company. To the extent
that the Company's competitors are able to offer more cost-effective
remediation alternatives, the Company's ability to compete could be materially
and adversely affected.
Unpredictability of Patent Protection and Proprietary Technology
The Company has seven United States patents which issued between 1987 and
1996, and which relate to SET(TM), electrochemistry of halogenated organic
compounds, separation and destruction of CFCs and decontamination of soils
containing mercury and radioactive metals. The Company also has one Canadian
patent relating to its SET(TM) technology. The Company has filed five
additional United States patent applications relating to separation and
destruction of CFCs and removal of heavy metals from soil. In November 1995,
the Company filed a provisional patent application relating to the destruction
of chemical warfare agents. Separation has filed one United States utility
patent application and two United States provisional patent applications
covering the principal features of the SLiM(TM) technology. One provisional
patent application covers the joint inventions of Srinivas Kilambi, Ph.D.,
Separation's Vice President-Technology, and Lockheed Martin, and a
corresponding utility patent application containing the specific patent claims
is expected to be filed in the near future. The Company may also pursue foreign
patent protection where it deems appropriate.
The Company's success depends, in part, on its ability to obtain
additional patents, protect the patents which it owns, maintain trade secrecy
protection and operate without infringing on the proprietary rights of third
parties. The patents currently owned by the Company are improvement patents
which are more difficult to monitor for infringement than those that would be
contained in a patent covering a pioneering invention or technology. There can
be no assurance that any of the Company's pending patent applications will be
approved, that the Company will develop additional proprietary technology that
is patentable, that any patents issued to the Company will provide the Company
with competitive advantages or will not be challenged by third parties or that
the patents of others will not have an adverse effect on the Company's ability
to conduct its business. Furthermore, there can be no assurance that others
will not independently develop similar or superior technologies,
7
<PAGE>
duplicate any elements of SET(TM), SLiM(TM) or the Company's other
technologies, or design around such technologies. It is possible that the
Company may need to acquire licenses to, or to contest the validity of, issued
or pending patents of third parties. There can be no assurance that any license
acquired under such patents would be made available to the Company on
acceptable terms, if at all, or that the Company would prevail in any such
contest. In addition, the Company could incur substantial costs in defending
itself in suits brought against the Company for alleged infringement of another
party's patents or in defending the validity or enforceability of the Company's
patents, or in bringing patent infringement suits against other parties based
on the Company's patents.
In addition to patent protection, the Company also relies on trade
secrets, proprietary know-how and technology which it seeks to protect, in
part, by confidentiality agreements with its prospective working partners and
collaborators, employees and consultants. There can be no assurance that these
agreements will not be breached, that the Company would have adequate remedies
for any breach, or that the Company's trade secrets and proprietary know-how
will not otherwise become known or be independently discovered by others.
Government Regulation
The Company and its customers are required to comply with a number of
federal, state and local laws and regulations in the areas of safety, health
and environmental controls, including, without limitation, the Resource
Conservation and Recovery Act, as amended ("RCRA"), and the Occupational Safety
and Health Act of 1970 ("OSHA"), which may require the Company, its prospective
working partners or its customers to obtain permits or approvals to utilize
SET(TM) and/or SLiM(TM), or the Company's other environmental technologies and
related equipment on certain job sites. In addition, if the Company begins to
market SET(TM) and SLiM(TM) internationally, the Company will be required to
comply with laws and regulations and, when applicable, obtain permits or
approvals in those other countries. There is no assurance that such required
permits and approvals will be obtained. Furthermore, particularly in the
environmental remediation market, the Company may be required to conduct
performance and operating studies to assure government agencies that SET(TM)
and/or SLiM(TM), and their by-products, do not pose environmental risks. There
is no assurance that such studies, if successful, will not be more costly or
time-consuming than anticipated.
In addition, the Company's Nationwide Permit issued by the EPA contains
numerous conditions for maintaining the Nationwide Permit, including
notification of all job sites, periodic reporting to the EPA as to activities
at the job sites, prior notification to and approval by the EPA with respect to
any single-site centralized remediation facility that the Company may seek to
establish and certain restrictions on the disposal of by-products from the use
of SET(TM), and there can be no assurance that the Company will be able to
comply with such conditions in order to maintain and/or obtain renewal of the
Nationwide Permit.
Further, if new environmental legislation or regulations are enacted or
existing legislation or regulations are amended, or are interpreted or enforced
differently, the Company, its prospective working partners and/or its customers
may be required to meet stricter standards of operation and/or obtain
additional operating permits or approvals. There can be no assurance that the
Company will meet all of the applicable regulatory requirements.
Unspecified Acquisition-Related Risks
As part of its growth strategy, the Company will seek to acquire or invest
in complementary (including competitive) businesses, products or technologies.
The Company may allocate a significant portion of its available working capital
to finance a portion of the purchase price relating to possible acquisitions
of, or investments in, complementary (including competitive) business, products
or technologies. In the event any such acquisition or investment opportunity
arises in the future, it is probable that the Company will also be required to
obtain additional financing to complete such transaction. The process of
integrating such acquired assets into the Company's operations may result in
unforeseen operating difficulties and expenditures and may absorb significant
management attention that would otherwise be available for the ongoing
development of the Company's business. There can be no assurance that the
anticipated benefits of any acquisitions will be realized. In addition, future
acquisitions by the Company could result in potentially dilutive issuances of
equity securities, the incurrence of debt and contingent liabilities and
amortization expenses related to goodwill and other intangible assets,
8
<PAGE>
any of which could materially adversely affect the Company's operating results
and financial position. Acquisitions also involve other risks, including
entering markets in which the Company has no or limited prior experience. The
Company currently has no commitments or agreements with respect to any possible
acquisitions or investments.
Dependence on Key Management and Other Personnel
The Company is dependent on the efforts of its senior management and
scientific staff, including Paul E. Hannesson, Chairman of the Board, President
and Chief Executive Officer, Edwin L. Harper, Ph.D., Vice Chairman, Michael D.
Fullwood, Senior Vice President, Chief Financial and Administrative Officer,
Secretary and General Counsel, Jerry Karlik, Vice President, Andrew P. Oddi,
Vice President and Treasurer, and William E. Ingram, Vice President and
Controller. The proceeds of key-man life insurance policies on the lives of
certain of such individuals may not be adequate to compensate the Company for
the loss of any of such individuals. The loss of the services of any one or
more of such persons may have a material adverse effect on the Company.
The Company's future success will depend in large part upon its ability to
attract and retain skilled scientific, management, operational and marketing
personnel. The Company faces competition for hiring such personnel from other
companies, government entities and other organizations. There can be no
assurance that the Company will continue to be successful in attracting and
retaining such personnel.
Potential Conflicts of Interest
Paul E. Hannesson and Michael D. Fullwood, the Chairman of the Board,
President and Chief Executive Officer and the Senior Vice President, Chief
Financial and Administrative Officer, Secretary and General Counsel of the
Company, respectively, also serve in the same capacities with, and devote a
significant portion of their business and professional time and efforts to the
business of, Applied and Separation. In addition, Bentley J. Blum, Edwin L.
Harper, Ph.D., Kenneth L. Adelman, Ph.D., Herbert A. Cohen and David L.
Mitchell (the "Applied Directors"), all of whom are directors of the Company,
also serve as directors of Applied. While the Company believes that its
business and technologies are distinguishable from those of Applied, and that
it does not compete in the markets in which Applied competes, Messrs. Hannesson
and Fullwood and the Applied Directors may have potential conflicts of interest
with respect to, among other things, potential corporate opportunities,
business combinations, joint ventures and/or other business opportunities that
may become available to them, the Company and/or Applied. Moreover, while
Messrs. Hannesson and Fullwood have agreed to devote a portion of their
business and professional time and efforts to the Company, potential conflicts
of interest also include the amount of time and effort devoted by them to the
affairs of Applied and Separation. The Company may be materially adversely
affected if Messrs. Hannesson and Fullwood and/or the Applied Directors choose
to place the interests of Applied and/or Separation before those of the
Company. Each of Messrs. Hannesson and Fullwood and the Applied Directors has
agreed that, to the extent such opportunities arise, he will carefully consider
a number of factors, including whether such opportunities are within the
Company's line of business or consistent with its strategic objectives and
whether the Company will be able to undertake or benefit from such
opportunities. In addition, the Company's Board of Directors has adopted a
policy whereby any future transactions between the Company and any of its
subsidiaries, affiliates, officers, directors, principal stockholders or any
affiliates of the foregoing will be on terms no less favorable to the Company
than could reasonably be obtained in "arms length" transactions with
independent third parties, and any such transactions will also be approved by a
majority of the Company's disinterested outside directors. Messrs. Hannesson
and Fullwood and the Applied Directors also owe fiduciary duties of care and
loyalty to the Company under Delaware law. However, the failure of the
Company's management to resolve any conflicts of interest in favor of the
Company could materially adversely affect the Company's business, financial
condition and results of operations.
Control by Principal Stockholder; Loans Involving Affiliates
Bentley J. Blum, a director of the Company, Applied and Separation,
beneficially owned, directly and through entities controlled by him,
approximately 51.3% of the outstanding Common Stock of the Company as of
December 1, 1997. Paul E. Hannesson, the Chairman of the Board, President and
Chief Executive Officer
9
<PAGE>
of the Company and Applied, and the Chairman of the Board and Chief Executive
Officer of Separation, Solution and CFC, beneficially owned approximately 11.9%
of the outstanding Common Stock of the Company as of such date. Accordingly,
through his ownership or control of a controlling stock interest in the
Company, Mr. Blum will be able to control, subject to the terms of a voting
agreement, the voting of a majority of the outstanding shares of Common Stock
at all meetings of stockholders of the Company and, because the Common Stock
does not have cumulative voting rights, will be able to determine the outcome
of the election of all of the Company's directors and determine corporate and
stockholder action on other matters. Messrs. Blum and Hannesson are
brothers-in-law.
In September 1997, the Company provided Applied with a $4.0 million
unsecured loan, evidenced by Applied's 8% convertible subordinated note due
August 31, 2002 (the "Convertible Loan"). Payments of principal and accrued
interest under the note are fully subject and subordinated to all other
indebtedness for money borrowed of Applied. The Company has the right to
convert the note into shares of Applied common stock at a conversion price of
$3.89 per share (one full share of Applied common stock for each $3.89
principal amount of the note so converted). In consideration of the Convertible
Loan, the Company received warrants expiring August 31, 2002 to purchase
1,000,000 shares of common stock of Applied at an exercise price of $5.0325 per
share, subject to customary anti-dilution adjustments. To the extent of such
borrowings, cash resources will be diverted from use in the Company's business,
and possibly at times when the Company's liquidity and access to funding may be
limited. There can be no assurance that Applied will promptly repay any
outstanding amounts under the Convertible Loan or not otherwise default under
the terms thereunder. In the event of any such default, the Company's right to
convert the note into shares of Applied common stock may not be sufficient to
adequately compensate the Company for the amount of the Convertible Loan.
Volatility of Market Prices of Common Stock
The market price for the Company's Common Stock has been historically
volatile. Future announcements of new technologies and changing policies and
regulations of the federal government and state governments and other external
factors, as well as potential fluctuations in the Company's financial results,
may have a significant impact on the price of the Common Stock in the future.
Difficulty of Trading and Obtaining Quotations for Common Stock
The Company's Common Stock is currently trading in the over-the-counter
market in the Pink Sheets and is quoted in the OTCBB under the symbol "COES."
As a result of trading in the over-the-counter market, an investor would likely
find it more difficult to dispose of, or to obtain quotations as to, the price
of the Common Stock as opposed to a security traded on the Nasdaq Stock Market
or a national securities exchange.
The Nasdaq Stock Market has adopted amendments to its rules increasing
eligibility and maintenance criteria for the Nasdaq SmallCap Market, and there
can be no assurance that the Company will be eligible for such a listing in the
future. The new eligibility criteria for inclusion on the Nasdaq SmallCap
Market require, among other things, that an issuer have: (i) either (a) net
tangible assets (i.e., total assets less total liabilities and intangible
assets) of $4.0 million, (b) a market capitalization of $50.0 million or (c)
net income in its latest fiscal year or two of its last three fiscal years of
$750,000; (ii) one million shares in the public float with a market value of at
least $5.0 million; (iii) a minimum bid price of $4 per share; (iv) at least
three market makers; and (v) at least 300 shareholders holding round lots. As
of the date hereof, the Company does not meet the new Nasdaq Stock Market
criteria.
No Foreseeable Dividends
The Company does not anticipate paying dividends on its Common Stock in
the foreseeable future, but plans instead to retain earnings, if any, for the
operation and expansion of its business.
Certain Anti-Takeover Provisions and Potential Adverse Effect on Market Price
of Shares from Issuance of Preferred Stock
The Company's certificate of incorporation (the "Certificate of
Incorporation") and by-laws (the "By-laws") contain certain provisions that
could have the effect of delaying or preventing a change of control of the
Company, which could limit the ability of security holders to dispose of their
Shares in such transactions. The Certificate of Incorporation authorizes the
Board of Directors to issue one or more series of preferred stock without
10
<PAGE>
stockholder approval. Such preferred stock could have voting and conversion
rights that adversely affect the voting power of the holders of Common Stock,
or could result in one or more classes of outstanding securities that would
have dividend, liquidation or other rights superior to those of the Common
Stock. Issuance of such preferred stock may have an adverse effect on the then
prevailing market price of the Common Stock. Additionally, the Company is
subject to the anti-takeover provisions of Section 203 of the Delaware General
Corporation Law, which prohibits the Company from engaging in a "business
combination" with an "interested stockholder" for a period of three years after
the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed
manner. Section 203 could have the effect of delaying or preventing a change of
control of the Company.
Limitations on Liability of Directors and Officers
The Company's Certificate of Incorporation includes provisions to
eliminate, to the full extent permitted by the Delaware General Corporation Law
as in effect from time to time, the personal liability of directors of the
Company for monetary damages arising from a breach of their fiduciary duties as
directors. The Certificate of Incorporation also includes provisions to the
effect that (subject to certain exceptions) the Company shall, to the maximum
extent permitted from time to time under the laws of the State of Delaware,
indemnify, and upon request shall advance expenses to, any director or officer
to the extent that such indemnification and advancement of expenses is
permitted under such law, as it may from time to time be in effect. In
addition, the Company's By-laws require the Company to indemnify, to the full
extent permitted by law, any director, officer, employee or agent of the
Company for acts which such person reasonably believes are not in violation of
the Company's corporate purposes as set forth in the Certificate of
Incorporation. As a result of such provisions in the Certificate of
Incorporation and the By-Laws, stockholders may be unable to recover damages
against the directors and officers of the Company for actions taken by them
which constitute negligence, gross negligence or a violation of their fiduciary
duties, which may discourage or deter stockholders from suing directors,
officers, employees and agents of the Company for breaches of their duty of
care, even though such action, if successful, might otherwise benefit the
Company and its stockholders.
Forward-Looking Statements
This Prospectus and the documents incorporated herein by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act. Such forward-looking statements may be
deemed to include, among other things, statements related to anticipated
improvements in financial performance and management's long-term performance
goals, as well as statements relating to the Company's business and growth
strategies, including anticipated internal growth and plans to pursue
additional acquisitions of complementary (including competitive) business,
products or technologies. Actual results could differ materially from those
addressed in the forward-looking statements as a result of the factors
discussed in this "RISK FACTORS" section and elsewhere herein and in the
documents incorporated herein by reference.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale or other
disposition of the Shares by the Selling Stockholders hereunder.
11
<PAGE>
SELLING STOCKHOLDERS
This Prospectus may be used by certain officers, directors and controlling
stockholders of the Company for the resale to the public of Shares to be issued
to them upon exercise of options heretofore or hereafter granted under the 1997
Plan, the Hannesson Stock Option Agreement, the Harper Stock Option Agreement
and the Director Compensation Agreements. Such persons may be deemed to be in a
control relationship with the Company within the meaning of the Securities Act
and the rules and regulations of the Commission thereunder, and such Shares may
be deemed to be "control securities" within the meaning of General Instruction
C to Form S-8. This Prospectus may also be used for the resale to the public of
certain Shares heretofore issued upon exercise of options granted under the
1987 Plan, the DeAngelis Stock Option Agreement and the Magnell Stock Option
Agreement. Such Shares may be deemed to be "restricted securities" within the
meaning of General Instruction C to Form S-8. The securities referred to in
this paragraph may also be resold pursuant to Rule 144 under the Securities Act
or in other transactions exempt from registration.
The persons who may resell Shares pursuant to this Prospectus are referred
to in this Prospectus collectively as "Selling Stockholders." The following
table sets forth as to each Selling Stockholder: the name of the Selling
Stockholder; the nature of any position, office or other material relationship
with the Company or its affiliates within the past three (3) years; the number
of shares of Common Stock of the Company and the percentage of the outstanding
shares of such class owned as of December 1, 1997; the number of such shares
which may be sold hereby for the account of the Selling Stockholder; and the
number of such shares and percentage of the outstanding shares of such class
that will be owned by the Selling Stockholder, assuming the sale of all the
Shares offered hereby.
<TABLE>
<CAPTION>
Shares of Shares of
Common Stock Number of Common Stock
Owned Prior to Shares Owned After
the Sale(1) Which May the Sale
-------------------------- Be Sold ------------------------------
Name and Position/Relationship Number Percent(2) Hereby Number Percent(2)
- -------------------------------- ----------- ------------ ------------------- ---------------- -----------
<S> <C> <C> <C> <C> <C>
Paul E. Hannesson(3) ......... 3,950,000 6.7% 3,950,000 * (4) *
Edwin L. Harper(5) ............ 1,310,000 2.2% 1,310,000 * (6) *
Michael D. Fullwood(7) ...... 500,000 * 500,000 (8) * *
Kenneth L. Adelman(9) ......... 805,000 1.4% 805,000(10) * *
Andrew P. Oddi(11) ............ 452,000 * 450,000(12) 2,000(13) *
Herbert A. Cohen(14) ......... 105,000 * 105,000(15) * *
David L. Mitchell(16) ......... 105,000 * 105,000(17) * *
James M. DeAngelis(18) ...... 580,000 * 400,000(19) 180,000(20) *
Carl O. Magnell(21) ......... 240,000 * 90,000(22) 150,000(23) *
Edward Kleinberger (24) ...... 67,900 * 50,000(25) 17,900(26) *
Total ..................... 8,114,900 13.8% 7,765,000 349,900 *
</TABLE>
- ------------
* Represents less than 1% of outstanding Common Stock.
(1) Shares of Common Stock issued or issuable to the Selling Stockholders upon
exercise of currently outstanding stock options or warrants, whether or
not exercisable, are included.
(2) Percentages based on 58,883,583 shares of Common Stock outstanding as of
December 1, 1997.
(3) Mr. Hannesson has been a director of the Company since February 1993 and
was appointed its Chairman of the Board and Chief Executive Officer in
November 1996. Mr. Hannesson also served as President of the Company from
February 1993 to July 1996 and was re-appointed President on May 1, 1997.
Mr. Hannesson has been a director of Applied since March 1996 and was
appointed Chairman of the Board of Applied in November 1996. Mr. Hannesson
also served as Chief Executive Officer of Applied from March
12
<PAGE>
to October 1996 and as President of Applied from March to September 1996,
and was re-appointed Chief Executive Officer of Applied on November 18,
1996 and President of Applied on May 1, 1997. Mr. Hannesson also currently
serves as the Chairman of the Board and Chief Executive Officer of
Separation, Solution and CFC. Mr. Hannesson also serves as Chairman of the
Board of Lanxide Corporation ("Lanxide"), a research and development
company developing metal and ceramic materials. Lanxide is affiliated with
the Company by significant common ownership.
(4) Includes: (i) 3,450,000 Shares (subject to adjustment) issuable upon
exercise of currently outstanding options granted under the 1997 Plan; and
(ii) 500,000 Shares (subject to adjustment) issuable upon exercise of
currently outstanding options granted under the Hannesson Stock Option
Agreement.
(5) Dr. Harper served as President and Chief Operating Officer of both the
Company and Applied from November 1, 1996 to April 1997, and has served as
Vice Chairman of the Company and Applied since that date. Dr. Harper
served as Chairman of the Board and Chief Executive Officer of Separation,
Solution and CFC from January to April 1997, and has served as Vice
Chairman of all such companies since that date. Dr. Harper also serves as
a private consultant to the Company, Applied, Solution, Separation and
CFC.
(6) Includes: (i) 560,000 Shares (subject to adjustment) issuable upon
exercise of currently outstanding options granted under the 1997 Plan; and
(ii) 750,000 Shares (subject to adjustment) issuable upon exercise of
currently outstanding options granted under the Harper Stock Option
Agreement.
(7) Mr. Fullwood was appointed Senior Vice President, Chief Financial and
Administrative Officer, Secretary and General Counsel of the Company,
Applied, Solution, Separation and CFC effective May 12, 1997. Mr. Fullwood
was elected a director of Lanxide and was appointed Senior Vice President,
Chief Financial and Administrative Officer and General Counsel of Lanxide
on July 7, 1997.
(8) Represents 500,000 Shares (subject to adjustment) issuable upon exercise
of currently outstanding options granted under the 1997 Plan.
(9) Dr. Adelman has served as a director of the Company and Applied since July
1996 and was appointed Executive Vice President, Marketing and
International Development of Applied as of May 1, 1997. Dr. Adelman also
joined the Board of Directors of Separation in April 1997.
(10) Includes: (i) 700,000 Shares (subject to adjustment) issuable upon
exercise of currently outstanding options granted under the 1997 Plan; and
(ii) 105,000 Shares (subject to adjustment) issuable upon exercise of
currently outstanding options granted under a Director Compensation
Agreement.
<PAGE>
(11) Mr. Oddi was appointed Vice President and Treasurer of the Company,
Applied, Separation, Solution and CFC effective May 12, 1997. Mr. Oddi
served as Vice President of Finance & Administration and Chief Financial
Officer of the Company from 1987 to April 1997. Mr. Oddi also served as
the Vice President of Finance, Chief Financial Officer and Secretary of
Applied from March to November 1996, and served as the Vice
President--Finance of Separation from September 1996 to April 1997.
(12) Includes: (i) 200,000 Shares (subject to adjustment) issuable upon
exercise of currently outstanding options granted under the 1997 Plan; and
(ii) 250,000 Shares heretofore issued upon exercise of options granted
under the 1987 Plan.
(13) Represents 2,000 shares of Common Stock purchase by Mr. Oddi in the open
market.
(14) Mr. Cohen has served as a director of the Company and Applied since July
1996.
(15) Represents 105,000 Shares (subject to adjustment) issuable upon exercise
of currently outstanding options granted under a Director Compensation
Agreement.
(16) Mr. Mitchell has served as a director of the Company and Applied since
July 1996 and as a director of Separation since April 1997.
(17) Represents 105,000 Shares (subject to adjustment) issuable upon exercise
of currently outstanding options granted under a Director Compensation
Agreement.
13
<PAGE>
(18) Mr. DeAngelis was appointed Senior Vice President of Separation effective
September 1, 1996. He served prior to such time as Vice
President--Marketing of the Company and President of CFC since January
1993.
(19) Represents 400,000 Shares heretofore issued upon exercise of options
granted under the DeAngelis Stock Option Agreement.
(20) Includes: (i) 100,000 Shares (subject to adjustment) issuable upon
exercise of currently outstanding options granted under the DeAngelis
Stock Option Agreement, which Shares are being registered pursuant to the
Registration Statement of which this Prospectus is a part; and (ii) 80,000
shares of Common Stock purchased by Mr. DeAngelis in the open market.
(21) Mr. Magnell served as a Vice President of the Company from September 1995
to June 1996 and has served as a Vice President of Applied since that
date.
(22) Represents 90,000 Shares heretofore issued upon exercise of options
granted under the Magnell Stock Option Agreement.
(23) Represents 150,000 Shares (subject to adjustment) issuable upon exercise
of currently outstanding options granted under the Magnell Stock Option
Agreement, which Shares are being registered pursuant to the Registration
Statement of which this Prospectus is a part.
(24) Mr. Kleinberger has been an employee of the Company since 1986.
(25) Represents 50,000 Shares heretofore issued upon exercise of options
granted under the 1987 Plan.
(26) Represents 17,900 shares of Common Stock purchased by Mr. Kleinberger in
the open market.
The Company does not know whether any of the Selling Stockholders will use
this Prospectus in connection with the offer or sale of any Shares, or, if this
Prospectus is so used, how many Shares will be offered or sold. The information
set forth in this section may be updated by the Company by use of supplements
to this Prospectus issued subsequent to the date hereof.
14
<PAGE>
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by the Selling
Stockholders, or by pledgees, donees, transferees or other successors in
interest, in one or more transactions (which may involve one or more block
transactions) in the over-the-counter market, in transactions independent of
the over-the-counter market, in separately negotiated transactions, or in a
combination of such transactions. Such sales may be made either at fixed prices
which may be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated prices. Some or all
of the Shares may be sold through brokers acting on behalf of the Selling
Stockholders or to dealers for resale by such dealers, and in connection with
such sales, such brokers or dealers may receive compensation in the form of
discounts or commissions from the Selling Stockholders and/or the purchasers of
such Shares for whom they may act as broker or agent (which discounts or
commissions may be less than, or in excess of, those customary in the types of
transactions involved). In addition, any Shares covered by this Prospectus that
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this Prospectus.
The Selling Stockholders and any dealer participating in the distribution
of any Shares or any broker executing selling orders on behalf of the Selling
Stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or commissions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act.
Any broker or dealer participating in any distribution of Shares in
connection with this offering may be deemed to be an "underwriter" within the
meaning of the Securities Act, and if so deemed will be required to deliver a
copy of this Prospectus, including a Prospectus Supplement, if required, to any
person who purchases any of the Shares from or through such broker or dealer.
The Company will inform the Selling Stockholders that the
anti-manipulation rules under the Exchange Act may apply to sales in the market
and will furnish the Selling Stockholders upon request with a copy of such
rules. The Company will also inform the Selling Stockholders of the need for
delivery of copies of this Prospectus.
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker or dealer for the sale of
Shares through a block trade, special offering or secondary distribution, or a
purchase by a broker or dealer, a supplement to this Prospectus will be filed,
if required, pursuant to Rule 424(b) under the Securities Act, disclosing (a)
the name of each such Selling Stockholder and of the participating broker or
dealer, (b) the number of Shares involved, (c) the price at which such Shares
were sold, (d) the commissions paid or the discounts or concessions allowed to
such broker or dealer, where applicable, (e) that such broker or dealer did not
conduct any investigation to verify the information set out or incorporated by
reference in this Prospectus, and (f) other facts material to the transaction.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold only through registered or licensed brokers
or dealers. In addition, in certain states, the Shares may not be sold unless
they have been registered or qualified for sale in such state or an exemption
from such registration or qualification requirement is available and is
complied with.
All expenses incurred in connection with the registration of the Shares
are being borne by the Company, but all brokerage commissions and other
expenses incurred by individual Selling Stockholders will be borne by each such
Selling Stockholder. There is no assurance that any of the Selling Stockholders
will sell any or all of the Shares offered hereby.
15
<PAGE>
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Greenberg Traurig Hoffman Lipoff Rosen & Quentel, New York, New
York ("Greenberg Traurig"). Stephen A. Weiss, a shareholder of Greenberg
Traurig, holds options to purchase 275,000 shares of Common Stock.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference, except as they relate to the unaudited nine-month periods ended
September 30, 1997 and 1996, have been audited by various independent
accountants. The periods covered by these audits are indicated in the
individual accountants' reports. Such financial statements have been so
incorporated in reliance on the reports of the various independent accountants
given on the authority of such firms as experts in auditing and accounting.
16
<PAGE>
================================================================================
No dealer, salesperson or other person is authorized to give any
information or to make any representation not contained in this Prospectus in
connection with this offering, and any information or representation not
contained herein must not be relied upon as having been authorized by the
Company or any other person. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other than the
registered securities to which it relates or an offer to or solicitation of any
person in any jurisdiction where such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus at any time nor any sale made
hereunder shall, under any circumstances, create any implication that the
information herein contained is correct as of any time subsequent to the date
of this Prospectus.
--------------------------------------------
TABLE OF CONTENTS
Page
-----
Available Information .......................................... 2
Incorporation of Certain Documents by
Reference ................................................... 3
The Company ...................................................... 4
Risk Factors ................................................... 5
Use of Proceeds ................................................ 11
Selling Stockholders ............................................. 12
Plan of Distribution ............................................. 15
Legal Matters ................................................... 16
Experts ......................................................... 16
================================================================================
================================================================================
7,765,000 Shares
COMMODORE
ENVIRONMENTAL
SERVICES, INC.
Common Stock
----------------------------------------
PROSPECTUS
----------------------------------------
December 5, 1997
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this Registration
Statement the following documents heretofore filed by the Company with the
Securities and Exchange Commission (the "Commission") (File No. 0-10054)
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"):
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1997;
(c) The Company's Current Reports on Form 8-K dated January 22, May 20,
and July 3, 1997;
(d) Amendment No. 1 on Form 8-K/A to the Company's Current Report on Form
8-K dated January 22, 1997, filed with the Commission on March 27,
1997;
(e) Amendment No. 1 on Form 8-K/A to the Company's Current Report on Form
8-K dated May 20, 1997, filed with the Commission on October 3, 1997;
(f) The Company's definitive Proxy Statement, dated August 20, 1997, filed
in connection with the Company's 1997 Annual Meeting of Stockholders
held on September 12, 1997; and
(g) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated December 2, 1981,
filed under Section 12 of the Exchange Act, including any subsequent
amendment or any report or other filing with the Commission updating
such description.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock to which this Registration Statement
relates will be passed upon for the Company by Greenberg Traurig Hoffman Lipoff
Rosen & Quentel, New York, New York ("Greenberg Traurig"). Stephen A. Weiss, a
shareholder of Greenberg Traurig, holds options to purchase 275,000 shares of
Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware
(the "General Corporation Law") provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he
II-1
<PAGE>
or she is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or enterprise, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no cause to believe his or her
conduct was unlawful.
Section 145(b) of the General Corporation Law provides that a Delaware
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of
the fact that such person acted in any of the capacities set forth above,
against expenses actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted under
similar standards as set forth above, except that no indemnification may be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the court in which such action or suit was brought shall determine
that despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to be
indemnified for such expenses which the court shall deem proper.
Section 145 of the General Corporation Law further provides that to the
extent a director or officer of a corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses actually and
reasonably incurred by him or her in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights
to which the indemnified party may be entitled; and that the corporation may
purchase and maintain insurance on behalf of such person against any liability
asserted against him or her or incurred by him or her in any such capacity or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under such
Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment
thereto validly approved by stockholders may eliminate or limit personal
liability of members of its board of directors or governing body for monetary
damages for breach of a director's fiduciary duty. However, no such provision
may eliminate or limit the liability of a director for breaching his or her
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase or redemption which was illegal, or obtaining an improper personal
benefit. A provision of this type has no effect on the availability of
equitable remedies, such as injunction or rescission, for breach of fiduciary
duty. The Company's Certificate of Incorporation contains such a provision.
Article VII of the Company's Certificate of Incorporation eliminates the
personal liability of directors and/or officers to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director;
provided that such elimination of the personal liability of a director and/or
officer of the Company does not apply to (i) any breach of such person's duty
of loyalty to the Company or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) actions prohibited under Section 174 of the General Corporation Law
(i.e., liabilities imposed upon directors who vote for or assent to the
unlawful payment of dividends, unlawful repurchases or redemption of stock,
unlawful distribution of assets of the Company to the stockholders without the
prior payment or discharge of the Company's debts or obligations, or unlawful
making or guaranteeing of loans to directors and/or officers), or (iv) any
transaction from which the director derived an improper personal benefit. In
addition, Article VII of the Company's Certificate of Incorporation and Section
24 of the Company's By-Laws provide that the Company shall indemnify its
corporate personnel, directors and officers to the fullest extent permitted by
the General Corporation Law, as amended from time to time.
The Company has in force a combined insurance policy with its subsidiaries
under which its directors and officers are insured (with limits of $20 million
per occurrence and $20 million in the aggregate) against certain expenses in
connection with the defense of such actions, suits or proceedings to which they
are parties by reason of being or having been directors or officers of the
Company.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
as disclosed above, the Company has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
The restricted securities to be reoffered and resold pursuant to this
Registration Statement were issued in transactions exempt from registration
pursuant to Section 4(2) of the Securities Act. Each such transaction involved
the issuance of shares of Common Stock pursuant to the exercise of options
granted under the 1987 Plan to persons who were officers, employees or
directors of the Company and who had access to material information with
respect to the Company.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- ------------
<S> <C>
*4.1 Specimen Form of Common Stock Certificate.
*4.2 1987 Stock Option Plan of Commodore Resources Corporation.
4.3 Commodore Environmental Services, Inc. 1997 Stock Option Plan. (1)
4.4 Non-Qualified Stock Option Agreement, dated as of July 28, 1993, by and between the Com-
pany and Albert E. Abel. (2)
4.5 Non-Qualified Stock Option Agreement, dated as of November 22, 1993, by and between the
Company and James M. DeAngelis. (3)
4.6 Non-Qualified Stock Option Agreement, dated as of August 31, 1995, by and between the Com-
pany and Carl O. Magnell. (4)
*4.7 Amended and Restated Non-Qualified Stock Option Agreement, dated as of January 2, 1996, by
and between the Company and Stephen A. Weiss.
4.8 Non-Qualified Stock Option Agreement, dated as of February 16, 1996, by and between the
Company and Paul E. Hannesson. (4)
*4.9 Non-Qualified Stock Option Agreement, dated as of November 1, 1997, by and between the
Company and Geoffrey Tirman.
*4.10 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
David L. Mitchell.
*4.11 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
Herbert A. Cohen.
*4.12 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
Kenneth L. Adelman.
*4.13 Advisory Agreement, dated February 20, 1996, by and between the Company and Edward L.
Rowny.
*4.14 Advisory Agreement, dated February 22, 1996, by and between the Company and Misha Kra-
kowsky.
*4.15 Advisory Agreement, dated February 22, 1996, by and between the Company and Noel Brown.
*4.16 Advisory Agreement, dated March 7, 1996, by and between the Company and Oliver Giscard
d'Estaing.
*4.17 Non-Qualified Stock Option Agreement, dated as of June 17, 1997, by and between the Company
and Edwin L. Harper.
*5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- ------------
<S> <C>
*23.1 Consent of Tanner + Co.
*23.2 Consent of Price Waterhouse LLP.
*23.3 Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel (contained in Exhibit 5.1).
*25.1 Power of Attorney (included as part of the signature page to this Registration Statement and
incorporated herein by reference).
</TABLE>
- ------------
* Filed herewith electronically.
(1) Incorporated herein by reference. Filed as an exhibit to the Company's
Proxy Statement, dated August 20, 1997.
(2) Incorporated herein by reference. Filed as an exhibit to the Company's
Current Report on Form 8-K, dated August 10, 1993.
(3) Incorporated herein by reference. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993.
(4) Incorporated herein by reference. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
II-4
<PAGE>
where applicable, each filing of the annual report of the employee benefit
plans pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
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 New York, State of New York, on December 2,
1997.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Paul E. Hannesson
-----------------------------------------
Paul E. Hannesson
Chairman of the Board, President
and Chief Executive Officer
------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Paul E. Hannesson and Michael D. Fullwood, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, and any other regulatory
authority, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
------------
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ------
<S> <C> <C>
/s/ Paul E. Hannesson Chairman of the Board, President and December 2, 1997
- ------------------------- Chief Executive Officer
Paul E. Hannesson (principal executive officer)
/s/ Michael D. Fullwood Senior Vice President, Chief Financial and December 2, 1997
- ------------------------- Administrative Officer, Secretary and
Michael D. Fullwood General Counsel
(principal financial and accounting officer)
/s/ Edwin L. Harper Vice Chairman December 2, 1997
- -------------------------
Edwin L. Harper, Ph.D.
/s/ Bentley J. Blum Director December 2, 1997
- -------------------------
Bentley J. Blum
Director December 2, 1997
/s/ Kenneth L. Adelman
- -------------------------
Kenneth L. Adelman, Ph.D.
/s/ Herbert A. Cohen Director December 2, 1997
- -------------------------
Herbert A. Cohen
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- ------------
<S> <C>
*4.1 Specimen Form of Common Stock Certificate.
*4.2 1987 Stock Option Plan of Commodore Resources Corporation.
4.3 Commodore Environmental Services, Inc. 1997 Stock Option Plan.(1)
4.4 Non-Qualified Stock Option Agreement, dated as of July 28, 1993, by and between the Company
and Albert E. Abel.(2)
4.5 Non-Qualified Stock Option Agreement, dated as of November 22, 1993, by and between the
Company and James M. DeAngelis.(3)
4.6 Non-Qualified Stock Option Agreement, dated as of August 31, 1995, by and between the Company
and Carl O. Magnell.(4)
*4.7 Amended and Restated Non-Qualified Stock Option Agreement, dated as of January 2, 1996, by and
between the Company and Stephen A. Weiss.
4.8 Non-Qualified Stock Option Agreement, dated as of February 16, 1996, by and between the
Company and Paul E. Hannesson.(4)
*4.9 Non-Qualified Stock Option Agreement, dated as of November 1, 1997, by and between the
Company and Geoffrey Tirman.
*4.10 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
David L. Mitchell.
*4.11 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
Herbert A. Cohen.
*4.12 Director Compensation Agreement, dated February 20, 1996, by and between the Company and
Kenneth L. Adelman.
*4.13 Advisory Agreement, dated February 20, 1996, by and between the Company and Edward L. Rowny.
*4.14 Advisory Agreement, dated February 22, 1996, by and between the Company and Misha Krakowsky.
*4.15 Advisory Agreement, dated February 22, 1996, by and between the Company and Noel Brown.
*4.16 Advisory Agreement, dated March 7, 1996, by and between the Company and Oliver Giscard
d'Estaing.
*4.17 Non-Qualified Stock Option Agreement, dated as of June 17, 1997, by and between the Company and
Edwin L. Harper.
*5.1 Opinion of Greenberg Traurig Hoffman Lipoff Rosen & Quentel.
*23.1 Consent of Tanner + Co.
*23.2 Consent of Price Waterhouse LLP.
*23.3 Consent of Greenberg Traurig Hoffman Lipoff Rosen & Quentel (contained in Exhibit 5.1).
*25.1 Power of Attorney (included as part of the signature page to this Registration Statement and
incorporated herein by reference).
</TABLE>
- ------------
* Filed herewith electronically.
(1) Incorporated herein by reference. Filed as an exhibit to the Company's
Proxy Statement, dated August 20, 1997.
(2) Incorporated herein by reference. Filed as an exhibit to the Company's
Current Report on Form 8-K, dated August 10, 1993.
(3) Incorporated herein by reference. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1993.
(4) Incorporated herein by reference. Filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995.
<PAGE>
COMMODORE ENVIRONMENTAL SERVICES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF UTAH
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP 202656 10 4
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF $.01 PAR VALUE OF
COMMODORE ENVIRONMENTAL SERVICES, INC.
transferable only on the books of the Corporation by the holder hereof in person
or by attorney upon surrender of this Certificate properly endorsed.
This Certificate is not valid until countersigned and registered by the Transfer
Agent and Registrar.
IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and its Corporate Seal to be hereunto
affixed.
CERTIFICATE OF STOCK
Dated:
SECRETARY PRESIDENT
COMMODORE ENVIRONMENTAL SERVICES, INC.
CORPORATE SEAL
UTAH
COUNTERSIGNED AND REGISTERED
IBJ SCHRODER BANK & TRUST COMPANY
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE>
THIS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS, A COPY OF THE DESIGNATIONS, POWERS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR
SERIES THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C>
TEN COM -as tenants in common UNIF GIFT MIN ACT-..........Custodian..........
TEN ENT -as tenants by the entireties (Cust) (Minor)
JT TEN -as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act..........................
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value Received,_____________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
| |
| |
| |
| |
- ---------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ------------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
----------------------------
---------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATSOEVER
<PAGE>
EXHIBIT 4.2
1987 STOCK OPTION PLAN
of
COMMODORE RESOURCES CORPORATION
1. Purpose of the Plan
The purpose of the Plan is to promote the growth and general prosperity of
Commodore Resources Corporation (the "Company") by permitting the Company to
attract and retain personnel of exceptional ability by providing such key
employees an opportunity for investment in the Company through stock options.
2. Definition
Unless otherwise required by the context, the following terms when used in
the Plan shall have the meaning set forth in this Paragraph 2:
(a) "Board of Directors": The Board of Directors of the Company.
(b) "Code": The Internal Revenue Code of 1986, as amended.
(c) "Committee": The Stock Option-Stock Purchase Plan Committee of the
Board of Directors designated to administer the Plan pursuant to the provisions
of Paragraph 5 of the Plan.
(d) "Common Shares": Shares of the Company's $.01 par value Common Stock.
(e) "Effective Date": The date on which the Plan shall become effective as
set forth in Paragraph 4 of the Plan.
(f) "Fair Market Value": As applied to a specific date, the mean between
the high and low sale price of a Common Share on the over-the-counter market,
as reported by NASDAQ on the specific date or, if Common Shares were not traded
on such date, on the next preceding date the Common Shares are traded.
(g) "ISO": An Option, intended to meet the requirements of an "incentive
stock option" as defined in Section 422A of the Code or any statutory provision
that may replace such Section, and is designated an "incentive stock option" by
the Committee.
(h) "NQSO": An Option not intended to meet the requirements of an ISO and
designated a nonqualified stock option by the Committee.
(i) "Option": Any stock option granted under the Plan from time to time,
including both NQSOs and ISOs.
(j) "Stock Option Agreement": A stock option agreement evidencing an
Option in such form as adopted by the Committee pursuant to Paragraph 9 of the
Plan.
(k) "Subsidiary": A "subsidiary corporation" as defined in Section 425 of
the Code and shall include any corporations which became a Subsidiary after the
Effective Date.
3. Shares Subject to the Plan
The shares issuable pursuant to the exercise of Options shall be the
authorized but unissued or reacquired Common Shares of the Company. Subject to
adjustment as provided in Paragraph 10 hereof, the aggregate number of Common
Shares which may be issued pursuant to Options granted under the Plan on or
after the Effective Date shall not exceed 10,000,000 Common Shares. The number
of Common Shares available for grant of Options under the Plan shall be
decreased by the sum of the number of Common Shares with respect to which
Options have been issued and are then outstanding and the number of Common
Shares issued upon exercise of Options, and shall be increased due to the
expiration or termination of Options which have not been exercised.
<PAGE>
4. Effective Date and Term of the Plan
This Plan shall become effective as at January 27, 1987, the date that
this Plan was adopted by the Board of Directors of the Company; provided,
however, that unless the Plan is approved by a majority of the votes cast at a
meeting of the shareholders of the Company by the holders of shares entitled to
vote thereon within one year after its adoption by the Board of Directors, all
Options granted after the Effective Date and prior to the aforesaid meeting
shall terminate in all respects at the time of the aforementioned meeting.
Options may be granted under the Plan on or before December 31, 1992.
5. Administration
The Plan shall be administered by the Committee. The Committee shall
consist of not less than three (3) members of the Board of Directors to be
appointed by, and to serve at the pleasure of, the Board of Directors. All
determinations shall be made by the affirmative vote of a majority of the
members of the Committee at a meeting called for such purpose, or reduced to
writing and signed by all of the members of the Committee or by a vote of a
majority of the Committee at a meeting held by means of conference telephone
equipment allowing all members participating in such meeting to hear each other
at the same time. Subject to the By-Laws of the Company, and the provisions of
this Plan, all decisions made by the Committee in construing the provisions of
the Plan shall be final, conclusive and binding on all persons, including the
Company, its subsidiaries, shareholders and employees, provided, however, that
the Board of Directors may, from time to time, issue orders or adopt
resolutions, not inconsistent with the provisions of this Plan, to interpret
the provisions and supervise the administration of the Plan.
6. Granting of Options
(a) Grants: From time to time, the Committee shall recommend to the Board
of Directors from among the key employees of the Company and its Subsidiaries
which of such employees (the "Optionees") shall be granted Options under the
Plan, the number of Common Shares subject to each Option, whether the Option
shall be an ISO or a NQSO, the dates on which the Option is exercisable and any
other terms as are applicable to the Option. The Board of Directors shall
approve or disapprove all recommendations of the Committee. No employee shall
have any right whatsoever to receive any Option except as may be recommended by
the Committee and approved by the Board of Directors. The date upon which any
Option approved by the Board of Directors shall be deemed granted shall be the
date upon which action is taken by the Committee in recommending to the Board
of Directors that such Option be granted. In recommending the key employees to
whom Options shall be granted, as well as in recommending the number of shares
subject to each Option, the Committee shall take into consideration such
factors as it shall deem relevant in connection with accomplishing the purpose
of the Plan. A director of the Company who is not also a full time employee of
the Company shall, nevertheless, be eligible to participate in the Plan.
(b) Option Price: Subject to any adjustment pursuant to Paragraph 10, the
exercise price per Common Share subject to each Option shall be determined
solely by the Committee, provided however, that, except as provided in
Paragraph 8(b), the exercise price of all ISOs shall not be less than Fair
Market Value of a Common Share on the date such ISO is granted.
7. Terms of Options
(a) Option Period: Each Option shall be exercisable commencing and ending
(the "Termination Date") on the dates provided under the terms of the Option
unless the Option shall be terminated earlier under the provisions of this
Plan. In no event shall an Option be exercisable after the expiration of ten
(10) years from the date the Option was granted.
(b) Medium and Time of Payment: The exercise price shall be paid in full
upon the exercise of an Option, and the Common Shares purchased shall thereupon
be promptly delivered; provided, however, that the Company may, in its
discretion, require that an Optionee pay to the Company, at the time of
exercise, such amount as the Company deems necessary to satisfy its obligations
to withhold Federal, state or local income taxes incurred by reason of such
exercise. The exercise price shall be payable in cash or by means of the
Company's unrestricted
<PAGE>
Common Shares or any combination thereof. Payment in currency or by check, bank
draft, cashier's check or money order shall be considered payment in cash. In
the event of payment in the Company's unrestricted Common Shares, the Common
Shares used in payment of the exercise price shall be valued at the Fair Market
Value of such Common Shares as of the date of payment.
(c) Nontransferability of Options: Each Option, during the Optionee's
lifetime, shall be exercisable only by him, and neither it nor any right
hereunder shall be transferable otherwise than by will or the laws of descent
and distribution or be subject to attachment, execution or similar process. In
the event of any attempt by an Optionee to alienate, assign, pledge,
hypothecate or otherwise dispose of his Option or of any right hereunder,
except as provided for herein, or in the event of any levy or attachment,
execution or similar process upon the rights or interests hereby conferred, the
Company may terminate his Option by notice to the Optionee and it shall
thereupon become null and void.
(d) General Restrictions: Each Option shall be subject to the requirement
that, if at any time the Board of Directors or the Committee shall determine,
in its discretion, that the listing, registration or qualification of the
Common Shares subject to such Option upon any securities exchange or under any
state or federal law, or the consent or approval of any government regulatory
body, is necessary or desirable as a condition of, or in connection with, the
granting of such Option or the issue or purchase of Common Shares thereunder,
such Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors or the
Committee.
(e) Cessation of Employment of Optionee: If, prior to the Termination
Date, the Optionee shall cease to be employed by the Company or a Subsidiary
thereof, other than by reason of the death or disability (within the meaning of
Section 105(d)(4) of the Code) of the Optionee, each Option shall remain
exercisable for a period of three (3) months from the date of cessation of
employment to the extent that it was exercisable at the time of cessation of
employment, and thereafter all such Options shall terminate together with all
rights hereunder, to the extent not previously exercised. If, prior to the
Termination Date, the Optionee shall cease to be employed by the Company or a
Subsidiary thereof by reason of a disability within the meaning of Section
105(d)(4) of the Code, each Option shall remain exercisable for a period of one
(1) year from date of cessation of employment to the extent that it was
exercisable at the time of cessation of employment, and thereafter all such
Options shall terminate together with all rights hereunder the extent not
previously exercised. Notwithstanding the provisions of this Paragraph,
however, if the Optionee shall be discharged for cause (which shall be defined
as participation in conduct during employment consisting of fraud, felony,
willful misconduct or commission of any act which causes or may reasonably be
expected to cause substantial damage to the Company) each Option to the extent
not previously exercised shall terminate at once.
(f) Death of Optionee: In the event of the death of the Optionee, prior to
the Termination Date while employed by the Company or a Subsidiary thereof or
while entitled to exercise such Option pursuant to the immediately preceding
Paragraph, each Option may be exercised at any time or from time to time prior
to the Termination Date, but within one (1) year of the date of his death, by
the person or persons to whom the Optionee's rights under each Option shall
pass by will or by the applicable laws of descent and distribution, to the
extent, if any, that the Optionee was entitled to exercise it on the date of
his death.
8. Special Rules Applicable to ISOs
The terms and conditions specified below shall be applicable to all ISOs
but not to NQSOs granted under the Plan.
(a) No individual will be granted an ISO who, at the time the option is
granted, owns (directly, or within the meaning of Section 425(d) of the Code)
more than ten percent of the total combined voting power of all classes of
stock of the Company or any Subsidiary, unless (a) the exercise price under
such Option is at least 110 percent of the Fair Market Value of the Common
Shares subject to the Option at the time of the grant and (b) such Option by
its terms is not exercisable after the expiration of five (5) years from the
date it is granted.
(b) The aggregate Fair Market Value (determined as of the date the Option
is granted) of the Common Shares with respect to which ISOs granted after the
Effective Date are exercisable for the first time by an Optionee in any
calendar year under this or any other stock option plan maintained by the
Company and its Subsidiaries, shall not exceed $100,000.
<PAGE>
9. Instrument of Grant
The terms and conditions of each Option granted under the Plan after the
Effective Date shall be set forth in a Stock Option Agreement, which Stock
Option Agreement shall be executed by an authorized officer of the Company and
the Optionee. The Stock Option Agreement shall contain such terms and
provisions, not inconsistent with the Plan, as shall be determined by the
Committee or the Board of Directors.
10. Adjustment Upon Certain Changes in Common Shares
In the event that (i) the number of outstanding Common Shares shall be
changed solely by reason of split-ups, combinations of shares,
recapitalizations, or stock dividends (but for no other reasons), or (ii) the
Common Shares are converted into or exchanged for other shares as a result of
any merger or consolidation (including sale of assets) or other
recapitalization, the number of Common Share available for issuance pursuant to
Paragraph 3, the number of Common Shares then subject to options theretofore
granted under the Plan, and the exercise price per Common Share, shall be
proportionately adjusted as determined by the Committee so as to reflect such
change. The judgment of the Committee with respect to any matter referred to in
this Paragraph shall be conclusive and binding upon each Optionee.
11. Use of Proceeds
The proceeds derived from the sale of Common Shares subject to Options
granted under the Plan shall constitute general funds of the Company and used
for its general corporate purposes.
12. Indemnification of Committee
In addition to such other rights of indemnification as they may have as
directors or as members of the Committee, the members of the Committee shall be
indemnified by the Company against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of an action
taken or failure to act under or in connection with the Plan or any Option
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in any such act suit
or proceeding, except in relation to matters as to which it shall be adjudged
in such act of proceeding that such Committee member is liable for gross
negligence or willful misconduct in the performance of his duties; provided
that within sixty (60) days after institution of any such action, suit or
proceeding a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend same.
13. Amendments and Termination
(a) The Board of Directors may amend or terminate the Plan, but may not
(i) without the consent of the Optionee, alter or impair any rights or
obligations under any option theretofore granted or (ii) without the approval
of the holders of a majority of the Common Shares voting thereon, make any
alteration in the Plan, except as provided in Paragraph 10 hereof, which
operates:
(i) to increase the total number of Common Shares which may be issued
under the Plan; or
(ii) to extend the term during which Options may be granted under the
Plan; or
(iii) to permit the exercise of an Option after the date on which such
Option would otherwise terminate pursuant to the terms hereof.
(b) The Committee may, on such terms as the Committee deems desirable and
with the consent of the Optionee, amend the terms and conditions of any
outstanding Option including, without limitation, the conversion of an Option
intended on the date of its grant to qualify as an ISO into a NQSO.
14. Plan Does Not Confer Employment or Stockholder Rights
The right of the Company or any Subsidiary thereof to terminate (whether
by dismissal, discharge, retirement or otherwise) an Optionee's employment with
it at any time at will, or as otherwise provided by any agreement between the
Company and an Optionee, is specifically reserved. Neither the Optionee or any
person
<PAGE>
entitled to exercise his rights in the event of his death shall have any rights
of a stockholder with respect to the Common Shares subject to each Option,
except to the extent that a certificate for such shares shall have been issued
upon the exercise of each Option as provided for herein.
15. Gender and Number
Except as otherwise indicated by the context, any masculine terminology in
the Plan shall also include the feminine gender, and the definition of any term
herein in the singular shall include the plural.
<PAGE>
EXHIBIT 4.7
AMENDED AND RESTATED STOCK OPTION AGREEMENT
THIS AMENDED AND RESTATED STOCK OPTION AGREEMENT, dated as of January 2,
1996 (the "Agreement"), is made by and between Stephen A. Weiss, an individual
residing at 11 The Mews, Westport, Connecticut 06880 ("Weiss"), and COMMODORE
ENVIRONMENTAL SERVICES, INC., a Delaware corporation, having an address at 150
East 58th Street, Suite 3400, New York, New York 10155 ("CES").
W I T N E S S E T H:
WHEREAS, in consideration for services rendered, CES has agreed to grant
to Weiss an option (the "Option") to buy shares of common stock of CES (the
"Common Stock") and Weiss hereby accepts the said Option; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration the receipt of which is hereby
acknowledged, CES and Weiss do hereby agree as follows:
1. The Option. CES hereby grants to Weiss the Option to purchase from CES
275,000 shares of the Common Stock (the "Full Exercise Amount") at any time
during the period commencing on January 1, 1996 and terminating on December 31,
2000 (the "Exercise Period"), at the exercise price per share of Thirty Seven
and 50/100 Cents ($0.375) subject to adjustment as hereinbelow set forth (the
"Option Exercise Price").
2. Duration of Option. The Option shall expire and all rights to purchase
shares pursuant thereto shall cease at 5:00 p.m., New York City time, on the
last day of the Exercise Period (the "Expiration Date").
3. Designation as Nonqualified Option. The option is designated as
"Nonqualified Option," which term, as used herein, shall mean an option not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
4. Exercise of Option. Weiss may exercise the Option by delivering to CES
a notice specifying the number of shares of Common Stock with respect to which
the Option is being exercised (the "Shares") in each calendar year, which
Notice shall include payment in full of the Option Exercise Price for such
Shares (the "Option Exercise"). Such payment shall be made by certified or bank
check drawn on a bank which is a member of the Federal Reserve and payable to
the order of CES.
5. Condition to Exercise. The Option shall be fully exercisable by Weiss
without any restrictions.
6. Nontransferability. The Option shall not be transferable other than by
will or the laws of descent and distribution and may not be exercised by anyone
other than Weiss; provided, that if Weiss dies or becomes incapacitated, the
Option may be exercised by Weiss' estate, legal representative or beneficiary,
as the case may be, subject to all other terms and conditions contained in the
Agreement.
7. Issuance of Shares; Restrictions. (a) Subject to the conditions and
restrictions provided in this Section 7, CES shall, within 20 business days
after the Option has been duly exercised in whole or in part, deliver to Weiss
one or more certificates, registered in the name of Weiss, for the number of
the Shares with respect to which the Option has been exercised. CES may legend
any stock certificate issued hereunder to reflect any restrictions provided
under applicable state securities or other laws as determined by counsel to
CES, as well as any other restrictions provided for in this Section 7.
(b) Legend. All shares issued to Weiss pursuant to the Option Exercise
shall bear the following legend:
"The Shares evidenced by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933
or applicable state securities laws, and may not be offered, sold or
otherwise transferred, pledged or hypothecated unless and until
registered under the securities laws, or unless, in the option of
counsel satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, such offer, sale, transfer, pledge or
hypothecation is exempt from registration or is otherwise in compliance
with such laws."
<PAGE>
(c) Anything contained herein to the contrary notwithstanding, CES shall
not be obligated to sell or issue any shares of Common Stock pursuant to
the exercise of the Option unless and until (i) CES is satisfied that such
sale or issuance complies with all applicable provisions of the Securities
Act of 1933 and all other laws or regulations by which CES is bound or to
which CES or such shares are subject (including all applicable state
securities or other laws) and (ii) if Weiss has not already done so, Weiss
executes and delivers a subscription agreement in the form then being
utilized by CES with respect to employee-stockholders which covers the
shares of Common Stock acquired pursuant to the exercise of the Option.
8. Adjustments to Shares Subject to Option. The number of shares of Common
Stock covered by the Option, and the Option Exercise Price and the type of
securities subject to the Option Exercise Price and the type of securities
subject to the Option shall be proportionately and equitably adjusted for any
increase or decrease in the number of issued shares of Common Stock, or any
change in the type of securities subject to the Option, resulting from a
stock-split or other subdivision, any other consolidation of shares of the
Common Stock, any other capital adjustment of the shares of Common Stock, any
exchange or conversion of the Common Stock for other securities, or the payment
of a stock dividend upon the shares of Common Stock subject to the Option.
9. Complete Agreement; Amendments. This Agreement constitutes the complete
understanding and agreement among the parties hereto, and no alteration,
amendment or modification of any of the terms or provisions hereof shall be
valid unless made pursuant to an instrument in writing signed by each of said
parties. This Agreement supersedes and terminates any and all prior agreements
and understandings among the parties hereto relating to the subject matter
hereof.
10. Severability. In the event that any provision or provisions of this
Agreement shall hereafter be declared to be invalid or unenforceable in whole
or in part; such invalidity or unenforceability shall not affect any provisions
of this Agreement or portions of such provisions not rendered invalid or
unenforceable, which provisions or portions of such provisions shall continue
in full force and effect.
11. Successors and Assigns. All of the terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the heirs,
successors, personal representatives and permitted assigns of the respective
parties hereto.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
choice of law principles thereunder.
13. Notice. All notices, offers, acceptances and the communications to be
made, served or given under or pursuant to the terms hereof shall be in writing
and shall be sent (i) by registered or certified mail, return receipt
requested, postage prepaid, (ii) personally delivered, or (iii) delivered by
telecopy, to any party at the address set forth at the beginning of this
Agreement for such party. Any party hereto may change the address to which each
such notice or communication shall be sent by giving written notice to the
other part hereto of such changed address. Notice shall be deemed upon given
hand delivery, transmission by telecopy, or five (5) days following deposit in
the United States mail (prepaid, return receipt requested).
14. Headings. The headings in this Agreement are intended solely for ease
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Michael D. Fullwood
------------------------------------------
/s/ Stephen A. Weiss
------------------------------------------
STEPHEN A. WEISS
<PAGE>
EXHIBIT 4.9
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, dated as of November 1, 1997 (the
"Agreement"), is made by and between Geoffrey Tirman ("Tirman"), and COMMODORE
ENVIRONMENTAL SERVICES, INC., a Delaware corporation, having an address at 150
East 58th Street, Suite 3400, New York, New York 10155 ("CES").
W I T N E S S E T H:
WHEREAS, CES has agreed to grant to Tirman an option (the "Option") to buy
shares of common stock of CES (the "Common Stock") and Tirman hereby accepts
the said Option; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and for other good and valuable consideration the receipt of which is hereby
acknowledged, CES and Tirman do hereby agree as follows:
1. The Option. CES hereby grants to Tirman the Option to purchase from CES
25,000 shares of the Common Stock (the "Full Exercise Amount") at any time
during the period commencing on November 1, 1997 and terminating on December
31, 2000 (the "Exercise Period"), at the exercise price per share of Thirty
Seven and 50/100 Cents ($0.375) subject to adjustment as hereinbelow set forth
(the "Option Exercise Price").
2. Duration of Option. The Option shall expire and all rights to purchase
shares pursuant thereto shall cease at 5:00 p.m., New York City time, on the
last day of the Exercise Period (the "Expiration Date").
3. Designation as Nonqualified Option. The option is designated as
"Nonqualified Option," which term, as used herein, shall mean an option not
intended to be an "incentive stock option" within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
4. Exercise of Option. Tirman may exercise the Option by delivering to CES
a notice specifying the number of shares of Common Stock with respect to which
the Option is being exercised (the "Shares") in each calendar year, which
Notice shall include payment in full of the Option Exercise Price for such
Shares (the "Option Exercise"). Such payment shall be made by certified or bank
check drawn on a bank which is a member of the Federal Reserve and payable to
the order of CES.
5. Condition to Exercise. The Option shall be fully exercisable by Tirman
without any restrictions.
6. Nontransferability. The Option shall not be transferable other than by
will or the laws of descent and distribution and may not be exercised by anyone
other than Tirman; provided, that if Tirman dies or becomes incapacitated, the
Option may be exercised by Tirman's estate, legal representative or
beneficiary, as the case may be, subject to all other terms and conditions
contained in the Agreement.
7. Issuance of Shares; Restrictions. (a) Subject to the conditions and
restrictions provided in this Section 7, CES shall, within 20 business days
after the Option has been duly exercised in whole or in part, deliver to Tirman
one or more certificates, registered in the name of Tirman, for the number of
the Shares with respect to which the Option has been exercised. CES may legend
any stock certificate issued hereunder to reflect any restrictions provided
under applicable state securities or other laws as determined by counsel to
CES, as well as any other restrictions provided for in this Section 7.
(b) Legend. All shares issued to Tirman pursuant to the Option Exercise
shall bear the following legend:
"The Shares evidenced by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933 or applicable state securities laws, and may not be offered, sold
or otherwise transferred, pledged or hypothecated unless and until
registered under the securities laws, or unless, in the option of
counsel satisfactory to the Corporation, in form and substance
satisfactory to the Corporation, such offer, sale, transfer, pledge or
hypothecation is exempt from registration or is otherwise in compliance
with such laws."
(c) Anything contained herein to the contrary notwithstanding, CES shall
not be obligated to sell or issue any shares of Common Stock pursuant to the
exercise of the Option unless and until (i) CES is satisfied that such sale or
issuance complies with all applicable provisions of the Securities Act of 1933
and all other laws or
<PAGE>
regulations by which CES is bound or to which CES or such shares are subject
(including all applicable state securities or other laws) and (ii) if Tirman
has not already done so, Tirman executes and delivers a subscription agreement
in the form then being utilized by CES with respect to employee-stockholders
which covers the shares of Common Stock acquired pursuant to the exercise of
the Option.
8. Adjustments to Shares Subject to Option. The number of shares of Common
Stock covered by the Option, and the Option Exercise Price and the type of
securities subject to the Option Exercise Price and the type of securities
subject to the Option shall be proportionately and equitably adjusted for any
increase or decrease in the number of issued shares of Common Stock, or any
change in the type of securities subject to the Option, resulting from a
stock-split or other subdivision, any other consolidation of shares of the
Common Stock, any other capital adjustment of the shares of Common Stock, any
exchange or conversion of the Common Stock for other securities, or the payment
of a stock dividend upon the shares of Common Stock subject to the Option.
9. Complete Agreement; Amendments. This Agreement constitutes the complete
understanding and agreement among the parties hereto, and no alteration,
amendment or modification of any of the terms or provisions hereof shall be
valid unless made pursuant to an instrument in writing signed by each of said
parties. This Agreement supersedes and terminates any and all prior agreements
and understandings among the parties hereto relating to the subject matter
hereof.
10. Severability. In the event that any provision or provisions of this
Agreement shall hereafter be declared to be invalid or unenforceable in whole
or in part; such invalidity or unenforceability shall not affect any provisions
of this Agreement or portions of such provisions not rendered invalid or
unenforceable, which provisions or portions of such provisions shall continue
in full force and effect.
11. Successors and Assigns. All of the terms and provisions of this
Agreement shall inure to the benefit of and be binding upon the heirs,
successors, personal representatives and permitted assigns of the respective
parties hereto.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
choice of law principles thereunder.
13. Notice. All notices, offers, acceptances and the communications to be
made, served or given under or pursuant to the terms hereof shall be in writing
and shall be sent (i) by registered or certified mail, return receipt
requested, postage prepaid, (ii) personally delivered, or (iii) delivered by
telecopy, to any party at the address set forth at the beginning of this
Agreement for such party. Any party hereto may change the address to which each
such notice or communication shall be sent by giving written notice to the
other part hereto of such changed address. Notice shall be deemed upon given
hand delivery, transmission by telecopy, or five (5) days following deposit in
the United States mail (prepaid, return receipt requested).
14. Headings. The headings in this Agreement are intended solely for ease
of reference and shall be given no effect in the construction or interpretation
of this Agreement.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Michael D. Fullwood
----------------------------------------
/s/ Geoffrey Tirman
------------------------------------------
GEOFFREY TIRMAN
<PAGE>
EXHIBIT 4.10
[COMMODORE LETTERHEAD]
February 20, 1996
Mr. David Mitchell
399 Park Avenue
29th Floor
New York, New York 10022
Re: Appointment to Board of Directors of
Commodore Environmental Services, Inc.
--------------------------------------
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occuring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
-------------------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ David Mitchell
- --------------------------
David Mitchell
<PAGE>
EXHIBIT 4.11
[COMMODORE LETTERHEAD]
February 20, 1996
Mr. Herbert Cohen
2700 Virginia Avenue, NW
Washington, DC 20037
Re: Appointment to Board of Directors of
Commodore Environmental Services, Inc.
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
---------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Herbert Cohen
- ---------------------
Herbert Cohen
<PAGE>
EXHIBIT 4.12
[COMMODORE LETTERHEAD]
February 20, 1996
Mr. Kenneth L. Adelman
Kenneth L. Adelman Consulting
2101 Wilson Blvd. - Suite 1003
Arlington, Virginia 22201
Re: Appointment to Board of Directors of
Commodore Environmental Services, Inc.
--------------------------------------
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
------------------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Kenneth L. Adelman
- -----------------------
Kenneth L. Adelman
<PAGE>
EXHIBIT 4.13
[COMMODORE LETTERHEAD]
February 20, 1996
Ambassador Edward L. Rowny
2700 Calvert Street, N.W.
Washington, DC 20008
Re: Appointment to Board of Advisors of
Commodore Environmental Services, Inc.
and Subsidiaries
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
----------------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Edward L. Rowny
- ---------------------
Edward L. Rowny
<PAGE>
EXHIBIT 4.14
[COMMODORE LETTERHEAD]
February 22, 1996
Mr. Misha Krakowsky
3105 Lippo Tower, Lippo Centre
85 Queensway, Hong Kong
Re: Appointment to Board of Advisors of
Commodore Environmental Services, Inc.
and Subsidiaries
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
-------------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Misha Krakowsky
- ---------------------
Misha Krakowsky
<PAGE>
EXHIBIT 4.15
[COMMODORE LETTERHEAD]
February 22, 1996
Dr. Noel Brown
789 Oenoke Road
New Canaan, Connecticut 06840
Re: Appointment to Board of Advisors of
Commodore Environmental Services, Inc.
and Subsidiaries
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
------- ---------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Noel Brown
- ---------------------
Dr. Noel Brown
<PAGE>
EXHIBIT 4.16
[COMMODORE LETTERHEAD]
March 7, 1996
Mr. Oliver Giscard d'Estaing
25 Boulevard du Chateau
92200 Neuilly, France
Re: Appointment to Board of Advisors of
Commodore Environmental Services, Inc.
and Subsidiaries
Dear Sir:
Commodore Environmental Services, Inc. (the "Company") is pleased to
confirm your appointment to the Board of Directors of the Company (the
"Board"), commencing at such time as (a) you shall have accepted your
appointment to the Board by countersigning and returning to the Company a
counterpart copy of this letter, and (b) the Company shall have in effect
directors' and officers' insurance in amounts deemed customary and appropriate
by the Board. The Company will notify you at such time as such directors' and
officers' insurance has become effective.
In consideration of your service on the Board, the Company will, upon your
acceptance hereof, issue to you stock options entitling you to purchase up to
105,000 shares of common shares of the Company, such stock options (a) to have
an exercise price of $.60 per share (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations or other such events occurring
subsequent to the issuance of the options), (b) to vest and be exercisable at
the rate of one-third of the shares subject to such options on each of the
first, second and third anniversaries of the effective date of your Board
membership and provided that you continue to serve on the Board on the subject
anniversary date, (c) to expire not later than the tenth anniversary of the
date of issuance of the options, and (d) to otherwise be on the terms and
conditions of the Company's standard form of stock option agreement. The
Company hereby confirms that neither the initial issuance of nor the periodic
vestings under such stock options constitutes a taxable event under current tax
laws.
The Company will also reimburse you for any and all documented reasonable
expenses which you may incur in connection with your service on the Board,
subject to prior approval of the Chairman or the President of the Company in
respect of any material expenditures.
In the event that any litigation, arbitration or other legal or
administrative proceeding is brought against you by reason of your service on
the Board or any actions taken by you in such capacity, the Company will, to
the fullest extent permitted by law, and subject to the provisions of the
Company's Certificate of Incorporation and By-Laws, defend, indemnify and hold
you harmless from and in respect of any and all costs, claims, damages, losses,
liabilities and expenses (including reasonable attorneys' fees) which you may
suffer or incur by reason thereof or in connection therewith; provided, that no
indemnification will be provided for any matter or action for which a director
of the Company could not be indemnified in accordance with applicable law.
If the foregoing meets with your approval, kindly confirm your acceptance
of your appointment to the Board by countersigning and returning to the Company
a counterpart copy of this letter.
Very truly yours,
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Bentley J. Blum
-----------------------------
Bentley J. Blum, Chairman
Accepted and Agreed to:
/s/ Olivier Giscard d'Estaing
- -------------------------------
Olivier Giscard d'Estaing
<PAGE>
EXHIBIT 4.17
COMMODORE ENVIRONMENTAL SERVICES, INC.
OPTION AGREEMENT
----------------
AGREEMENT (this "Agreement") dated as of June 17, 1997 (the "Date of
Grant") by and between COMMODORE ENVIRONMENTAL SERVICES, INC. a Delaware
corporation having offices at 150 East 58th Street, Suite 3400, New York, New
York 10155 (the "Company") and Edwin Harper an individual residing at 1305
Ballantrae Court, McLean, Virginia 22101 (the "Optionee").
WITNESSETH:
-----------
WHEREAS, the Company provides for, among other things, the granting from
time to time to officers, directors and/or persons determined by a committee of
the Board (the "Committee") to be key employees or directors of and/or key
consultants to the Company or any of its subsidiaries of "non-qualified stock
options" or "incentive stock options" to purchase shares of Common Stock, par
value $.001 per share, of the Company (the "Common Stock").
WHEREAS, on May 1, 1997, the Company granted the Optionee an option (the
"Existing Option") to purchase 750,000 shares of Common Stock at an exercise
price of $0.29, and now wishes to set forth in writing the terms and conditions
of such prior grant.
WHEREAS, the Optionee and the Company desire to terminate the Existing
Agreement, and restate the terms and conditions applicable to the Existing
Option in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereby agree as follows:
<PAGE>
1. Grant and Designation of Option.
(a) Subject to the terms and conditions of this Agreement, the terms
and conditions of which are incorporated by reference, the Company granted to
the Optionee as of May 1, 1997, the right and option (the "Option") to purchase
up to 750,000 shares of Common Stock (the "Option Shares") at a price of $.029
per share (the "Exercise Price").
(b) The option is intended to be, and shall be treated as a
Nonqualified Option
2. Vesting of Option.
(a) The Option may be exercised unless and then only to the extent that
it is vested in accordance with the provisions of this Section 2.
(b) as of the date hereof, the Option is vested and exercisable with
respect to 750,000 Option Shares.
(c) Anything contained in this Section 2 to the contrary
notwithstanding, the Optionee shall become fully (100%) vested in the Option
upon the Optionee's termination of employment with the Company or any of its
subsidiaries by reason of death, disability or retirement at age 65 or older in
accordance with the Company's standard retirement procedures then in effect
(with retirement being hereinafter referred to as "retirement"), or as provided
in Section 6 hereof. The determination of whether disability or retirement has
occurred shall be made by the Committee in its sole discretion. As used herein,
the term "subsidiary" shall have the meaning ascribed to the term "subsidiary
corporation" under Section 424 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option.
Subject to prior termination in accordance with Section 8 below, and
subject to extension by mutual written agreement of the Company and the
Optionee, the Option shall expire and all rights to purchase shares pursuant
hereto (to the extent not previously exercised) shall cease and terminate on May
1, 2007.
<PAGE>
4. Exercise of Option.
A person entitled to exercise the Option may exercise the Option (if
and to the extent then vested in accordance with Section 2 above) in whole at
any time, or in part from time to time by delivering to the Company (or any
other officer hereafter designated by the Company for the purpose), written
notice specifying the number of shares of Common Stock with respect to which the
Option is being exercised, together with payment in full of the Exercise Price
for such shares plus an amount that is sufficient to enable the Company or the
applicable subsidiary to withhold in accordance with applicable state and
federal withholding requirements. Such payment shall be made in cash or by
certified check or bank draft to the order of the Company, provided, however,
that the Committee may, in its sole discretion, authorize such payment, in whole
or in part, in any other form, including payment by personal check or by the
exchange of shares of Common stock of the Company then owned of record by the
person entitled to exercise the Option and having a fair market value (as
determined by the Committee) on the date of exercise equal to the price for
which the shares of Common Stock may be purchased pursuant to the Option.
5. Adjustments.
(a) The number of shares of Common Stock covered by the Option, and the
Exercise Price, shall be proportionately adjusted for any increase or decrease
in the number of issued and/or outstanding shares of Common Stock resulting from
a stock split, combination of shares, recapitalization or other subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend in respect of the Common Stock; provided, however, that any fractional
shares resulting from any such adjustment shall be eliminated.
(b) From time to time as and when any adjustments may be required
pursuant to this Section 5, the Company shall endeavor to give written notice to
the Optionee of the event requiring such adjustment, which notice shall further
<PAGE>
set forth the Company's calculation of the required adjustment to the number of
shares of Common Stock covered by the Option, and the Exercise Price therefor.
6. Merger, Consolidation, etc.
In the event that the Company shall, pursuant to action by the
Board, at any time propose to merge into, consolidate with, or sell or otherwise
transfer all of its assets to, another corporation and provision is not made
pursuant to the terms of such transaction for (a) the assumption by the
surviving, resulting or acquiring corporation of the Option, (b) the
substitution of a new option therefor, or (c) the payment of cash or other
consideration in respect thereof, then the Committee shall cause written notice
of the proposed transaction to be given to the Optionee not less than thirty
(30) days prior to the anticipated effective date of the proposed transaction.
On a date which the Committee shall specify in such notice, which date shall not
be less than ten (10) days prior to the anticipated effective date of the
proposed transaction, the Option shall become fully (100%) vested and the
Optionee shall have the right to exercise the Option to purchase any or all
shares then subject to the Option, and if the proposed transaction is
consummated, the Option, to the extent not previously exercised prior to the
effective date of the transacton, shall terminate on such effective date. If the
proposed transaction is abandoned or otherwise not consummated, then to the
extent that the portion of the Option not exercised prior to such abandonment
shall have vested solely by operation of this Section 6, such vesting shall be
annulled and be of no further force or effect and the vesting period set forth
in Section 2 above shall be reinstituted as of the date of such abandonment,
provided, however, that nothing herein contained shall be deemed to
retroactively affect or impair any exercise of any such vested Option prior to
the date of such abandonment.
7. Non-Transferability.
(a) The Opion shall not be transferable other than (i) to any
transferee who is a member of the immediate family (i.e., spouse, child, natural
parent, brother or sister) of the original Optionee hereunder, or (ii) by will
or the laws of descent and distribution.
<PAGE>
(b) In no event and under no circumstances shall the Optionee or any
other person entitled to exercise the Option pledge, hypothecate, or grant a
lien upon or security interest in any interest in this Agreement or the option.
8. Termination of Employment; Competition.
The following provisions shall apply in the event of the Optionee's
engaging in competition with the Company, or (if the Optionee is now or
hereafter becomes an employee of the Company or any of its subsidiaries) in the
event of the termination of the Optionee's employment with the Company or any of
its subsidiaries.
(a) In the event that the Optionee shall engage or participate in,
or become involved with, in any manner or capacity (whether as employee, agent,
consultant, advisor, officer, director, manager, partner, joint venturer,
investor, shareholder (other than passive investments in less than five (5%)
percent of the outstanding securities of any company or otherwise), any business
enterprise which is engaged in the rendering of environmental remediation
services or any other business conducted or operated by the Company on the date
on which the Optionee first became involved with such other business enterprise,
or in the event that the Optionee's employment with the Company or any of its
subsidiaries shall be terminated either (i) by the Company or any of its
subsidiaries "for cause" (as defined in any applicable employment agreement to
which the Optionee is a party), or (in the absence of such a definition
contained in any applicable employment agreement to which the Optionee is a
party) for fraud, dishonesty, habitual drunkenness or drug use, for willful
disregard of assigned duties or instructions by the Optionee, for concrete
actions causing substantial harm to the Company, or for other breach by the
Optionee of any applicable employment agreement to which the Optionee is a
party, or (ii) by the Optionee voluntarily and without the written consent of
the Company then the Option shall immediately terminate at the time that notice
of termination of employment is given, and shall not then or thereafter be
exerciseable in whole or in part, provided, however, that nothing herein
contained shall be deemed to modify or amend the terms and conditions of any
applicable employment agreement, including but not limited to the grounds upon
which the Optionee's employment may be terminated.
<PAGE>
(b) In the event that the Optionee's employment with the Company or
any of its subsidiaries shall terminate (i) by reason of retirement, or (ii)
under circumstances other than those specified in Section 8(a) above and for
other than death or disability, then the Option shall terminate thirty (30) days
after the date of such termination of employment or on the Expiration Date,
whichever shall first occur, provided, however, that if the Optionee dies within
such thirty (30) day period, then the Option shall terminate ninety (90) days
after the Optionee's death or on the Expiration Date, whichever shall first
occur.
(c) In the event of the death or disability of the Optionee while
the Optionee is employed by the Company or any of its subsidiaries, the Option
shall terminate ninety (90) days after the Optionee's death or disability, as
the case may be, or on the Expiration Date, whichever shall first occur.
(d) Anything contained in this Section 8 to the contrary
notwithstanding, the Option may only be exercised following the Optionee's
termination of employment with the Company or any of its subsidiaries of reasons
other than death, disability or retirement if, and to the extent that, the
Option was exercisable immediately prior to such termination of employment.
(e) The Optionee's transfer of employment between the Company and
any of its subsidiaries or between subsidiaries shall not constitute a
termination of employment, and the Committee shall determine in each case
whether an authorized leave of absence for professional education, military
service or otherwise shall constitute a termination of employment.
9. No Right as Stockholder or to Continued Employment.
The Optionee shall not have any rights as a stockholder of the
Company with respect to any shares covered by the Option prior to the date of
issuance to the Optionee of the certificate or certificates for such shares. The
Option does not confer upon the Optionee any right to continued employment by
the Company or any of its subsidiaries, or interfere in any way with the right
<PAGE>
of the Company or of its subsidiaries to terminate the employment of the
Optionee (subject to the terms and conditions of any applicable employment
agreement between the Company or any of its subsidiaries and the Optionee).
10. Issuance of Shares; Restrictions.
(a) Subject to the conditions, restrictions and other qualifications
provided in this Section 10, the Company shall, within thirty (30) business days
after the Option has been duly exercised in whole or in part, deliver to the
person who exercised the Option one or more certificates, registered in the name
of such person, for the number of shares of Common Stock with respect to which
the Option has been exercised. The Company may legend any stock certificate
issued hereunder to reflect any restrictions provided for in this Section 10,
including but not limited to a "stop transfer" legend pursuant to Section 10(b)
below.
(b) Unless the shares subject to the Option have been registered
under the Securities Act of 1933, as amended (the "Act") (and, if the person
exercising the Option may be deemed an "affiliate" of the Company as such term
is defined in Rule 405 under the Act, such shares have been registered under the
Act for resale by such person), or the Company has determined that an exemption
from registration under the Act is available, (i) any exercise of the Option
shall be deemed a confirmation by the person effecting such exercise that he or
she is acquiring the subject Option Shares for his or her own account for
investment, and not with a view to the resale or distribution of all or any part
thereof, and (ii) the Company may require, prior to and as a condition of the
issuance of any shares of Common Stock pursuant to such exercise, that the
person exercising the Option furnish the Company with a further written
representation in a form prescribed by the Committee to the effect that (A) such
person acquiring such shares solely with a view to investment for such person's
own account and not with a view to the resale or distribution of all or any part
thereof, and (B) such person will not dispose of any of such shares otherwise
than in accordance with the provisions of Rule 144 under the Act unless and
until either the sale or distribution of such shares is registered under the Act
or the Company is satisfied that an exemption from such registration is
available.
<PAGE>
(c) Anything herein contained to the contrary notwithstanding, the
Company shall not be obliged to sell or issue any shares of Common Stock
pursuant to the exercise of the Option unless and until the Company is satisfied
that such sale or issuance complies with all applicable provisions of the Act
and all other laws and/or regulations by which the Company is bound or to which
the Company or such shares are subject, and the Company reserves the right to
delay the delivery of Option Shares for such period of time as may be required
in order to effect compliance with the applicable provisions of the Act and all
other applicable laws and/or regulations as aforesaid.
11. Acknowledgement.
The Optionee hereby acknowledges receipt of a copy of and agrees to
accept as final and conclusive all determinations, interpretations and
constructions by the Committee with respect to, this Agreement and the Option.
All capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in.
12. Reservation of Common Stock.
The Company shall at all times reserve and keep available for
issuance upon the exercise of the Option such manner of shares of Common Stock
(whether unissued or treasury or both) as shall be sufficient to permit the full
exercise of the Option.
13. Expense.
The Company shall pay any and all expenses, transfer taxes and other
charges, including all costs associated with the preparation, issuance and
delivery of stock certificates, that may be incurred in respect of the issuance
or delivery of Option Shares upon any exercise of the Option.
14. Entire Agreement.
The parties hereto agree that this Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements,
understandings, negotiations and discussions, both written and oral, between the
parties hereto with respect to the Existing Option. The
<PAGE>
parties further agree that the Existing Agreement is hereby terminated without
obligation to either party hereto, provided, however, that nothing in this
Agreement shall in any way modify any portion of any Existing Agreement that
does not relate to the Existing Option.
15. Miscellaneous
(a) No provision hereof, in the absence of affirmative action by the
Optionee (or other person entitled to exercise the Option at such time) to
effect any exercise hereunder, shall give rise to any liability of the Optionee
(or any such other person) for the Exercise Price or as a stockholder of the
Company, regardless of whether such liability is asserted by the Company or by
any creditor or creditors of the Company.
(b) Neither this Agreement nor any of the terms or conditions hereof
may be waived, amended or modified, except with the written consent of the
Company and the Optionee.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(d) The captions and Section headings used in this Agreement are for
convenience of reference only, and shall not affect or be referred to in
connection with any interpretation or construction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the Date of Grant first set forth above.
COMMODORE ENVIRONMENTAL SERVICES, INC.
By /s/ Michael D. Fullwood
--------------------------------------------------
Name
Title
---------------------------------------------
Optionee: /s/ Edwin L. Harper
-----------------------------------------
Optionee Social Security No.:
---------------------
<PAGE>
EXHIBIT 5.1
[GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN & QUENTEL LETTERHEAD]
December 5, 1997
Commodore Environmental Services, Inc.
150 East 58th Street, Suite 3400
New York, New York 10155
Re: Registration Statement on Form S-8
--------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Commodore Environmental Services, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
under the Securities Act of 1933, as amended (the "Securities Act"), for the
registration of an aggregate of 22,145,000 shares of the Company's common stock,
par value $.001 per share (the "Common Stock"), consisting of: (a) 8,765,000
shares of Common Stock issuable upon exercise of currently outstanding options
heretofore granted under (i) the Commodore Environmental Services, Inc. 1997
Stock Option Plan (the "1997 Plan"), (ii) Non-Qualified Stock Option Agreements,
dated as of July 28 and November 22, 1993, as of August 31, 1995, as of February
16, 1996, and as of June 17 and November 1, 1997, and the Amended and Restated
Non-Qualified Stock Option Agreement, dated as of January 1, 1996 ( the "Stock
Option Agreements"), (iii) Director Compensation Agreements, dated February 20,
1996 (the "Director Compensation Agreements"), and (iv) Advisory Agreements,
dated February 20 and 22, and March 7, 1996 (the "Advisory Agreements"); (b)
12,590,000 shares of Common Stock underlying options presently available to be
granted under the 1997 Plan; and (c) 790,000 shares of Common Stock heretofore
issued upon exercise of options granted under (i) the 1987 Stock Option Plan of
Commodore Resources Corporation, and (ii) certain Stock Option Agreements. The
opinion set forth below relates only to the 21,355,000 shares of Common Stock
(the "Shares") issuable upon exercise of options granted, or available to be
granted, under the 1997 Plan, the Stock Option Agreements, the Director
Compensation Agreements, and the Advisory Agreements.
In connection with this opinion, we have examined the Registration
Statement, the Company's Certificate of Incorporation, By-Laws and minutes, and
such other documents and records as we have deemed relevant. In our
examinations, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
with the originals of all documents submitted to us as copies. In addition, we
have made such other examinations of law and of fact as we have deemed
appropriate in order to form a basis for the opinion hereinafter expressed.
With respect to the original issuance of the Shares by the Company, we have
assumed that the Shares will be issued, and the certificates evidencing the
same will be duly delivered, in accordance with the respective terms of the
1997 Plan, the Stock Option Agreements, the Director Compensation Agreements,
and the Advisory Agreements, as applicable, and against receipt of the
consideration stipulated therefor, which will not be less than the par value of
the Shares.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the foregoing
assumptions, will be validly issued, fully paid and non-assessable.
The opinion set forth above is limited to the Delaware General Corporation
Law, as amended.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion and consent, we do not thereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Securities Act, or the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ GREENBERG TRAURIG HOFFMAN LIPOFF ROSEN
& QUENTEL
<PAGE>
EXHIBIT 23.1
TANNER + CO.
Certified Public Accountants
675 East 500 South, Suite 640
Salt Lake City, Utah 84102
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8, and in the Prospectus constituting a part thereof, of
our report dated February 6, 1996, relating to the consolidated financial
statements of Commodore Environmental Services, Inc. (the "Company") for the
year ended December 31, 1995, which appears on page F-1A of the Company's
Annual Report on Form 10-K for the year ended December 31, 1996, and to the
reference of our firm under the caption "Experts" in the Prospectus.
/s/ Tanner + Co.
- ----------------
Tanner + Co.
Salt Lake City, Utah
December 5, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8, and in the Prospectus constituting a part thereof, of
our report dated April 11, 1997 appearing on page F-1 of Commodore
Environmental Services, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996. We also consent to the reference to us under the caption
"Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Philadelphia, Pennsylvania
December 5, 1997
