As filed with the Securities and Exchange Commission on April 12, 1995
Registration No. 33-
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
WESTERN WASTE INDUSTRIES
(Exact name of registrant as specified in its charter)
CALIFORNIA 4990 95-1946054
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Identification No.)
incorporation or Number)
organization)
21061 South Western Avenue
Torrance, California 90501
(310) 328-0900
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
____________________
Kosti Shirvanian
Chairman of the Board and President
Western Waste Industries
21061 South Western Avenue
Torrance, California 90501
(310) 328-0900
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
Copies of Communications to:
____________________
Arnold J. Rothlisberger, Esq. James J. Slaby, Esq.
Vice President and General Counsel Sheppard, Mullin, Richter & Hampton
Western Waste Industries 333 South Hope Street
21061 South Western Avenue Los Angeles, California 90071
Torrance, California 90501 (213) 620-1780
(310) 328-0900
____________________
Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective.
____________________
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [X]
If the securities being registered on this form are to be offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
EXHIBIT INDEX ON PAGE 24
Page 1 of 29 <PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of each maximum maximum
class of Amount offering aggregate Amount of
securities to to be price per offering registration
be registered registered share price fee
---------------------------------------------------------------------------
Common Shares 3,000,000 $16.125<F1> $48,375,000<F1> $16,681
===========================================================================
[FN]
<F1> Estimated solely for the purpose of calculating the registration fee
under Rule 457(c) based upon the average of the high and low prices of
$16.25 and $16.00, respectively, for such shares as reported on the
New York Stock Exchange on April 10, 1995.
____________________
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission acting
pursuant to said Section 8(a), may determine.
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WESTERN WASTE INDUSTRIES
CROSS-REFERENCE SHEET
BETWEEN
ITEMS IN FORM S-4 AND LOCATION IN PROSPECTUS
Form S-4 Item Number and Caption Location in Prospectus
-------------------------------- ----------------------
1. Forepart of the Registration Statement Facing Page; Cross-Reference
and Outside Front Cover Page of Sheet; Outside Front Cover
Prospectus . . . . . . . . . . . . Page
2. Inside Front and Outside Back Cover Inside Front and Outside Back
Pages of Prospectus . . . . . . . Cover Pages
3. Risk Factors Ratio of Earnings to Fixed
Charges and Other Information . . Documents Incorporated By
Reference; The Company;
Selected Consolidated
Financial Information
4. Terms of the Transaction . . . . . . <F*>
5. Pro Forma Financial Information . . <F*>
6. Material Contracts with the Company <F*>
Being Acquired . . . . . . . . . .
7. Additional Information Required for <F*>
Reoffering by Persons and Parties
Deemed to be Underwriters . . . .
8. Interests of Named Experts and Legal Matters; Experts
Counsel . . . . . . . . . . . . .
9. Disclosure of Commission Position on <F*>
Indemnification for Securities Act
Liabilities . . . . . . . . . . .
10. Information with Respect to S-3 Documents Incorporated by
Registrants . . . . . . . . . . . Reference; The Company;
Dividend Policy; Price Range
of Common Shares; Selected
Consolidated Financial
Information; Description of
Capital Stock
11. Incorporation of Certain Information by Documents Incorporated by
Reference . . . . . . . . . . . . Reference
12. Information with Respect to S-2 or S-3 <F*>
Registrants . . . . . . . . . . .
13. Incorporation of Certain Information by <F*>
Reference . . . . . . . . . . . .
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Page 3 of 29 <PAGE>
14. Information with Respect to <F*>
Registrants Other Than S-3 or S-2
Registrants . . . . . . . . . . .
15. Information with Respect to S-3 <F*>
Companies . . . . . . . . . . . .
16. Information with Respect to S-2 or S-3 <F*>
Companies . . . . . . . . . . . .
17. Information with Respect to Companies <F*>
Other Than S-2 or S-3 Companies .
18. Information if Proxies, Consents <F*>
or Authorizations Are to be
Solicited . . . . . . . . . . . .
19. Information if Proxies, Consents or <F*>
Authorizations Are Not to be Solicited
or in an Exchange Offer . . . . .
[FN]
<F*> Not applicable or answer negative upon the date of filing of this
Registration Statement. The Registrant may be required to provide
information (or further information) in response to one or more of
such items under certain circumstances by means of a post-effective
amendment to this Registration Statement or supplement to the
prospectus contained herein.
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Page 4 of 29 <PAGE>
PROSPECTUS SUBJECT TO COMPLETION Dated _____________, 1995 (Logo)
3,000,000 Shares
WESTERN WASTE
Common Stock No Par Value
Western Waste Industries, a California corporation ("WW" or the
"Company"), has registered 3,000,000 shares of its Common Stock, no par
value (the "Common Shares"), which may from time to time be offered by this
Prospectus in connection with acquisitions by the Company of various
businesses or properties, or interests therein. The Common Shares may be
issued in exchange for the shares of capital stock, (by merger or
otherwise), partnership interests or other assets representing an interest,
direct or indirect, in other companies or other entities, in exchange for
assets used in or related to the business of such entities or otherwise
pursuant to the agreements providing for such acquisitions. The terms of
such acquisitions and of the issuance of the Common Shares under
acquisition agreements will generally be determined by direct negotiations
with the owners of the business or assets to be acquired or, in the case of
entities which are more widely held, through exchange offers to stock-
holders or documents soliciting the approval of statutory mergers,
consolidations or sales of assets. Underwriting discounts or commissions
will generally not be paid by WW. Under some circumstances, however, the
Company may issue Common Shares covered by this Prospectus to pay brokers'
commissions incurred in connection with acquisitions.
This Prospectus, as amended or supplemented if appropriate, has
also been prepared for use by the persons who have received or will receive
shares issued by WW in acquisitions, including shares sold hereunder and
who wish to offer and sell such shares, on terms then obtainable, in
transactions in which they may be deemed underwriters within the meaning of
the Securities Act of 1933, as amended (the "Act"). Any profits realized
on such sales by such persons may be regarded as underwriting compensation
under the Act.
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any state in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state.
The Common Shares offered hereby have been, or will be prior to
their issuance, listed on the New York Stock Exchange, Inc. subject to
official notice of issuance. On ____________________, 1995, the closing
price of WW Common Stock on the New York Stock Exchange, Inc. -- Composite
Transactions was $______________.
The Company's Common Stock is traded on the New York Stock
Exchange, Inc. under the symbol "WW".
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Page 5 of 29 <PAGE>
____________________________________________
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 _________, 1995.
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Page 6 of 29 <PAGE>
AVAILABLE INFORMATION
WW 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"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.
Washington, D.C. 20549; New York Regional Office, Public Reference Room,
7 World Trade Center, 13th Floor, New York, New York 10048; and Chicago
Regional Office, Suite 1400, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W. Washington, D.C. 20549,
at prescribed rates. WW's Common Stock is listed on the New York Stock
Exchange, and reports, proxy statements and other information concerning WW
may be inspected at the office of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. The Registration Statement and any amendments thereto,
including exhibits filed as a part thereof, are available for inspection
and copying as set forth above.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by WW with the
Commission under the Exchange Act are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1994, as amended, and (b) the Company's Quarterly Reports on
Form 10-Q for the quarter ended September 30, 1994 and for the quarter
ended December 31, 1994.
All documents filed by WW pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering made by this Prospectus shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing of such documents. Any statements contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a
part hereof except as so modified or superseded. All information appearing
in this Prospectus is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the documents
incorporated herein by reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN
EXHIBITS THERETO) ARE AVAILABLE WITHOUT CHARGE, UPON WRITTEN OR ORAL
REQUEST BY ANY PERSON TO WHOM THIS PROSPECTUS HAS BEEN DELIVERED, FROM
INVESTOR RELATIONS, WESTERN WASTE INDUSTRIES, 21061 S. WESTERN AVENUE,
TORRANCE, CALIFORNIA 90501 (TELEPHONE (310) 222-8723). IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE AT LEAST FIVE
DAYS PRIOR TO THE DATE ON WHICH A FINAL INVESTMENT DECISION IS TO BE MADE.
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THE COMPANY
Western Waste Industries, ("WW" or the "Company") is a provider
of integrated waste services to commercial, industrial and residential
customers. These services consist of the collection, processing, transfer
and disposal of solid waste in certain areas of California, Texas, Florida,
Colorado, Louisiana and Arkansas. WW has approximately 90 franchise
agreements, 82 of which designate the Company as the exclusive provider of
certain waste services within a particular municipality or county. As part
of its business, WW operates six landfills, three transfer stations and
four recycling facilities. The Company does not operate hazardous waste
landfills and limits its hazardous waste activities to the transportation
of such materials for others which accounted for approximately 1% of the
Company's revenue during fiscal year 1994. The Company's business
development strategy is to expand its existing operations through internal
growth and acquisitions and to explore and develop other solid waste
related business that management believes will utilize the Company's
expertise in waste collection transportation and disposal. The Company's
executive offices are located at 21061 South Western Avenue, Torrance,
California 90501 and its telephone number is (310) 328-0900.
RISK FACTORS
Investors should carefully consider the following factors, among
others, in connection with an investment in the Common Shares:
GOVERNMENT REGULATION. The waste services business is subject to
extensive and frequently changing federal, state and local laws and
substantial regulation under these laws by governmental agencies, including
the United States Environmental Protection Agency (the "EPA"), various
state agencies and county and local authorities acting in conjunction with
such federal and state entities. Companies engaged in waste services are
typically required to obtain and maintain permits in connection with a
significant portion of their operations. The extensive regulatory
framework applicable to waste services companies imposes on them
significant compliance burdens and risks. The Company believes that it is
in compliance in all material respects with all federal, state and local
laws and regulations governing its operations. However, amendments to
existing statutes and regulations, changes in regulatory policies, adoption
of new statutes and regulations and the Company's expansion into other
jurisdictions and waste services could require the Company and others in
the industry to continually modify waste disposal facilities and alter
methods of operations at costs that may be substantial, which could
adversely affect the Company. There can be no assurance that the Company
will be able, for financial reasons or otherwise, to comply with applicable
laws, regulations and permitting requirements.
COMPETITION. The solid waste industry is highly competitive and
requires substantial labor and capital resources. The industry is
characterized by large national waste management companies as well as
numerous local and regional companies of varying sizes and financial
resources. Certain national waste management companies have significantly
greater resources than the Company. The Company also competes with those
counties and municipalities that maintain their own waste collection or
landfill operations. These counties and municipalities may have financial
advantages due to their access to tax revenues and tax-exempt financing.
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COMPETITIVE PROPOSALS. The Company generally obtains contracts
for its services or for the operation of certain waste management
facilities through the process of competitive proposals. Contracts from
which the Company has derived and expects to derive a significant portion
of its revenues were obtained through competitive bidding. There can be no
assurance that the Company will continue to be successful in having its
bids accepted or, if accepted, that once awarded, contracts will generate
sufficient revenues to result in profitability for the Company.
RISK OF POTENTIAL LITIGATION. Although the Company strives to
conduct its operations in compliance with applicable laws and regulations,
the Company believes that in the existing climate, with heightened legal,
political and citizen awareness and concerns, companies in the
environmental services industry will face in the normal course of operating
their businesses, judicial and administrative proceedings involving
federal, state and local agencies, and may be subject to fines and
penalties and the need to expend funds for remedial work and related
activities with respect to waste collection, transportation and disposal.
While the Company does not anticipate that fines, penalties and
expenditures for remedial work and related activities, if any, at Company
facilities will have a material adverse effect on the Company's operations
or financial condition, the possibility remains that technological,
regulatory or enforcement developments, the result of environmental studies
or other factors could materially alter this expectation at any time. Such
matters could have an adverse impact on earnings for one or more fiscal
quarters or years or on the Company's operations.
The Company is currently involved in the following legal
proceedings:
On or about October 13, 1993, the Company was served with a
class action lawsuit now entitled In re Western Waste Industries Securities
-----------------------------------------
Litigation, Case No. CV-93 6126 KN filed in the United States District
----------
Court for the Central District of California. The complaint alleges that
the Company violated federal securities laws with regard to certain
disclosures and representations made by the Company and certain alleged
omissions on the part of the Company in connection with merger negotiations
between the Company and Browning-Ferris Industries ("BFI"). The plaintiffs
allege that they and all other persons or entities that bought the stock of
the Company during the period of September 2, 1993 through October 7, 1993
suffered damages as a result of changes in the market price of the
Company's common stock. In an Order dated October 4, 1994, the Court
granted the Company's request for a limitation in the class period, and
certified a class of persons who purchased the Company's common stock
during the period from October 1, 1993 through October 7, 1993, inclusive.
The Court further ordered that plaintiff Neil Haltrecht should be the class
representative, and denied class representative status to plaintiffs Isaac
Mayer and Croyden Associates. The Company does not believe that it has
violated any laws with regard to the BFI matter and intends to vigorously
defend the lawsuit.
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On or about August 9, 1994, a complaint was filed in Rancho
------
Disposal Services, Inc., et al. v. Western Waste Industries, et al., San
-------------------------------------------------------------------
Bernardino Superior Court Case No. SCB 14473. The Complaint seeks damages
and an injunction for the alleged violation of California Business and
Professions Code Sections 17047, 17200, and 17500 and for intentional
interference with existing and prospective economic relations. The
complaint alleges that the Company does not hold a validly issued permit to
operate within a certain geographic area in the County of San Bernardino
and that the Company has engaged in predatory pricing. The complaint also
alleges that the Company has violated a San Bernardino County ordinance by
engaging in discriminatory and non-uniform pricing of its refuse hauling
services. In addition to the injunction, the complaint demands three times
the actual damages incurred by plaintiffs, punitive and exemplary damages
in an amount to be proven at the time of trial, reasonable attorneys' fees
and costs of suit. The Company believes it has valid defenses to the
allegations and intends to vigorously defend the suit. The Company has
filed a cross-complaint against the plaintiffs for engaging in improper
pricing activities.
On or about February 2, 1995, a complaint was filed in a taxpayer
lawsuit entitled David Sarosi, et al. vs. County of Riverside, et al.,
----------------------------------------------------
Riverside County Superior Court Case No. 261315. The complaint does not
name the Company as a defendant. The plaintiffs allege that the County and
the other defendants, in connection with a contract with the Company,
regarding the operation and management of the El Sobrante Landfill (the
"Landfill") located within the County (the "Agreement"), engaged in various
improper actions, including the unlawful sale of public property, wasting
public funds, and making an unconstitutional gift of public property and
funds. The complaint seeks an order voiding the Agreement and an
injunction ordering the defendants to pay to the County allegedly unlawful
revenues earned from the Landfill, to cease further dumping at the Landfill
of out-of-county waste, return of alleged windfall profits and limiting
dumping fees charged to in-county residents. The complaint also seeks
general damages of $10 million and special and punitive damages, attorneys'
fees and costs. The Company believes the taxpayer suit is based upon
erroneous assumptions and that there are valid defenses available to the
County to each of the claims asserted in the complaint.
In addition to the above-described litigation, there are a number
of claims and suits pending against the Company for alleged damages to
persons and property, alleged violation of certain laws and for alleged
liabilities arising out of matters occurring during the normal operation of
the waste services business. In the opinion of management of the Company,
the uninsured liability, if any, under these claims and suits would not
materially affect the financial position of the Company.
SIGNIFICANT BONDING REQUIREMENTS. The Company is required, in
most instances, to post either or both bid and performance bonds in
connection with contracts or projects primarily with government entities
and to provide other financial assurances covering the closure,
post-closure monitoring and corrective activities for certain waste
management facilities. A significant portion of the Company's revenue is
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derived from contracts or projects which require the Company to post either
or both bid and performance bonds. There can be no assurance that bonding
coverage will be available in the future or that the Company will be able
to obtain bonds in the amounts required or have the ability to increase its
required bonding capacity. Any inability by the Company to obtain bonding
coverage could materially adversely affect the Company's operations.
POTENTIAL LIABILITY AND INSURANCE. The waste management industry
involves potentially significant risks of statutory, contractual and common
law liability. The Company carries a broad range of insurance coverage,
which the Company considers sufficient to meet regulatory and customer
requirements and to protect the Company's assets and operations. The
Company attempts to operate in a professional and prudent manner and to
reduce its liability risks through specific risk management efforts.
Nevertheless, a partially or completely uninsured claim against the
Company, if successful and of sufficient magnitude, could have a material
adverse effect on the Company.
The Company believes that its insurance coverage is adequate to
cover potential claims for the relatively limited amounts of hazardous
waste it believes it handles. There can be no assurance, however, that
the.Company will not incur liability with respect to the hazardous waste it
handles.
The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), imposes strict, joint and
several liability on the present and former owners and operators of
facilities which release hazardous substances into the environment.
Similar liability is imposed upon the generators and transporters of waste
which contains hazardous substances. All such persons may be liable for
waste site investigation, waste site cleanup costs and natural resource
damages, which costs could be substantial, regardless of whether they
exercised due care and complied with all relevant laws and regulations.
There can be no assurance that the Company will not face claims under
CERCLA resulting in substantial liability for which the Company is
uninsured, which could have a material adverse effect on the Company.
USE OF PROCEEDS
This Prospectus relates to shares of Common Stock of the Company
which may be offered and issued by the Company from time to time in
connection with the acquisition of other businesses or properties, or
interests therein. Other than the businesses or properties acquired, there
will be no proceeds to the Company from the offering. When this Prospectus
is used in a public reoffering or resale of the Common Stock acquired
pursuant to this Prospectus, such selling shareholders shall receive the
proceeds derived from such resale and not the Company.
OFFERED SECURITIES
The Prospectus relates to up to 3,000,000 Common Shares which WW
proposes to issue in its continuing program of acquisitions of entities,
assets or interests engaged in the collection, processing, transportation
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and disposal of solid waste. The consideration for any acquisition may
consist of cash, notes or other evidence of debt, assumptions of
liabilities, equity securities, or a combination thereof, as determined
from time to time by negotiations between WW and the owners of businesses
or properties to be acquired. WW intends to concentrate its acquisitions
in the solid waste industry, with primary emphasis on acquiring waste
collection companies and landfills. If the opportunity arises, however, WW
will attempt to make acquisitions which are either complementary to its
present operations or which it considers advantageous even though they may
be dissimilar to its present activities. In general, the terms of
acquisitions will be determined by direct negotiations between the
representatives of WW and the owners of the businesses or properties to be
acquired or, in the case of entities more widely held, through exchange
offers to stockholders or documents soliciting approval of statutory
mergers, consolidations or sales of assets. Underwriting discounts or
commissions will generally not be paid by WW. However, under some
circumstances, the Company may issue Common Shares covered by this
Prospectus to pay brokers' commissions incurred in connection with
acquisitions.
This Prospectus, as appropriately amended or supplemented, has
also been prepared for use by persons who receive shares issued by WW in
acquisitions, including Common Shares received upon conversion of other
equity securities that may be issued in acquisitions, and who wish to offer
and sell such shares, on terms then available, in transactions in which
they may be deemed affiliates or underwriters within the meaning of the
Securities Act of 1933 (such persons being referred to under this caption
as "Selling Shareholders"). Resales may be made pursuant to this
Prospectus, as amended or supplemented, pursuant to Rule 145(d) under the
Act, or pursuant to an exemption from the Act. Profits realized on resales
by Selling Shareholders under certain circumstances may be regarded as
underwriting compensation under the Act.
Resales by Selling Shareholders may be made directly to investors
or through a securities firm acting as an underwriter, broker or dealer.
When resales are to be made through a securities firm, such securities firm
may be engaged to act as the Selling Shareholder's agent in the sale of
shares by such Selling Shareholder, or such securities firm may purchase
shares from the Selling Shareholder as principal and thereafter resell such
shares from time to time. The fees earned by or paid to such securities
firm may be the normal stock exchange commission or negotiated commissions
or underwriting discounts to the extent permissible. In addition, such
securities firm may effect resales through other securities dealers, and
customary commissions or concessions to such other dealer may be allowed.
Sales of shares may be at negotiated prices, at fixed prices, at market
prices or at prices related to market prices then prevailing. Any such
shares may be made on the New York Stock Exchange or other exchange on
which such shares may be traded, in the over-the-counter market, by block
trade, in special or other offerings, directly to investors or through a
securities firm acting as agent or principal, or a combination of such
methods. Any participating securities firm may be indemnified against
certain civil liabilities, including liabilities under the Act. Any
participating securities firm may be deemed to be an underwriter within the
meaning of the Act, and any commissions earned by such firm may be deemed
to be underwriting discounts or commissions under the Act.
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A Prospectus Supplement, if required, will be filed under
Rule 424(b) under the Act, disclosing the name of the Selling Shareholder,
the participating securities firm, if any, the number of shares involved,
and other details of such resales, if appropriate.
DIVIDEND POLICY
WW is limited with respect to the amount of cash dividends which
can be paid, by certain terms of its revolving credit agreement with
certain financial institutions. No cash dividends have been paid to date
by the Company. The current policy of the Company is to retain earnings to
provide funds for the operation and expansion of its business. The Company
does not anticipate paying dividends in the foreseeable future.
PRICE RANGE OF COMMON SHARES
The high and low sales prices of the Common Shares on the New
York Stock Exchange, as reported by the Dow Jones News Service were as
follows:
Fiscal Year Common Shares
----------- High Low
-------- --------
1995
First Quarter . . . . . . . . . . . . 20 5/8 17 3/8
Second Quarter . . . . . . . . . . . . 18 5/8 13 3/8
Third Quarter . . . . . . . . . . . . . 17 14 7/8
Fourth Quarter (through
__________, 1995) . . . . . . . . .
1994
First Quarter . . . . . . . . . . . . . 22 1/2 9 5/8
Second Quarter . . . . . . . . . . . . 19 3/4 10 3/8
Third Quarter . . . . . . . . . . . . . 16 1/2 13 3/8
Fourth Quarter . . . . . . . . . . . . 20 1/2 13 5/8
1993
First Quarter . . . . . . . . . . . . . 12 1/4 9 5/8
Second Quarter . . . . . . . . . . . . 12 3/4 8 3/4
Third Quarter . . . . . . . . . . . . . 11 5/8 8 3/4
Fourth Quarter . . . . . . . . . . . . 12 9
On April __, 1995, the closing price of the Common Shares on the
New York Stock Exchange was $_____________ per share. On April __, 1995,
there were _____________ record holders of the Company's Common Shares.
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected financial data for the five years ended
June 30, 1994, are derived from the consolidated financial statements of
WW. The financial date for the six month periods ended December 31, 1994
and 1993 are derived from unaudited financial statements. The unaudited
financial statements include all adjustments, consisting of normal
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recurring accruals, which WW considers necessary for a fair presentation of
the financial position and the results of operations for these periods.
Operating results for the six months ended December 31, 1994 are not
necessarily indicative of the results that may be expected for the entire
year ending June 30, 1995. The data should be read in conjunction with the
consolidated financial statements, related notes, and other financial
information incorporated by reference herein. See "Documents Incorporated
by Reference."
<TABLE> (In thousands, except per share data)
<CAPTION>
Six Months Ended
Year Ended June 30, December 31,
----------------------------------------------------------- ---------------------
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS 1990 1991 1992 1993 1994 1993 1994
---- ---- ---- ---- ---- ---- ----
(Unaudited)
Revenue $172,009 $199,820 $219,376 $231,205 $257,005 $126,234 $134,818
Income (loss) from 21,257 22,476 19,083 (14,562)<F**> 26,423 11,107 17,902
operations
Interest expense, net (5,041) (5,982) (3,379) (2,639) (3,035) (1,450) (1,999)
Other nonoperating income/ (62) 1,385 (11,444)<F*> 2,735 (767) (1) (1,084)
(expense)
Income (loss) before income 16,154 17,879 4,260 (14,466) 22,621 9,656 14,819
taxes
Net income (loss) 9,962 11,234 2,370 (10,116) 12,941 5,811 8,225
Net income (loss) per share .78 .81 .17 (.73) .86 .40 .53
- primary
Average number of shares 12,428 13,854 14,031 13,818 15,048 14,725 15,546
outstanding
No cash dividends have been declared to date.
</TABLE>
[FN]
<F*> Includes a $6,600 writedown related to G.I. Industries and a
provision of $4,050 related to an estimated loss on disposal of a
division.
<F**> Includes $21,043 of special charges and other charges of: $6,000
related to an estimated loss on a municipal contract, $4,000
related to increased self-insurance loss reserves and $1,000 for
other reserves.
-14-
Page 14 of 29 <PAGE>
<TABLE>
<CAPTION>
At June 30, At December 31,
-------------------------------------------------------- ------------
<S> <C> <C> <C> <C> <C> <C>
OTHER FINANCIAL AND 1990 1991 1992 1993 1994 1994
STATISTICAL DATA ---- ---- ---- ---- ---- ----
(Unaudited)
Working Capital $ 19,918 $ 28,655 $ 18,847 $ 13,261 $ 20,660 $ 21,002
Total assets 195,652 225,874 248,509 268,386 284,681 303,407
Property and equipment, net 112,537 127,306 155,316 172,662 185,598 189,864
Total long-term debt 60,197 75,405 90,037 91,618 93,390 102,664
Shareholders' equity 103,470 116,004 122,556 122,421 139,177 149,366
</TABLE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of
(i) 50,000,000 shares of Common Stock, no par value __________ shares of
which were issued and outstanding as of April __, 1995 and,
(ii) 2,000,000 shares of Preferred Stock, no par value, none of which are
outstanding. The following summary description of the capital stock of the
Company is qualified in its entirety by reference to the Restated Articles
of Incorporation (the "Articles") and Restated Bylaws (the "Bylaws") of the
Company, copies of which are incorporated by reference herein. See
"Documents Incorporated by Reference."
COMMON STOCK. Subject to the rights of the holders of any
Preferred Stock which may be outstanding, each holder of Common Stock on
the applicable record date is entitled to receive such dividends as may be
declared by the Board of Directors out of funds legally available therefor,
and, in the event of liquidation, to share pro rata in any distribution of
the Company's assets after payment or providing for the payment of
liabilities and the liquidation preference of any outstanding Preferred
Stock. Each holder of Common Stock is entitled to one vote for each share
held of record on the applicable record date on all matters presented to a
vote of stockholders, including the election of directors. Holders of
Common Stock have no cumulative voting rights or preemptive rights to
purchase or subscribe for any stock or other securities and there are no
conversion rights or redemption or sinking fund provisions with respect to
such stock. All outstanding shares of Common Stock are, and the shares of
Common Stock offered hereby will be when issued, fully paid and
nonassessable.
PREFERRED STOCK. The Company's Restated Articles of
Incorporation authorize a class of 2,000,000 shares of Preferred Stock.
The Company's Board of Directors has the authority to issue shares of such
Preferred Stock in one or more series and to fix, by resolution, the voting
powers, full or limited or no voting powers, and such designations,
preferences and relative, participating, optional or other rights, if any,
-15-
Page 15 of 29 <PAGE>
and the qualifications, limitations or restrictions thereof, if any,
including the number of shares in such series (which the Board may increase
or decrease as permitted by California law), liquidation preferences,
dividend rates, conversion rights and redemption provisions of the shares
of Preferred Stock constituting any series, without any further vote or
action by the stockholders. Any shares of Preferred Stock so issued would
have priority over the Common Stock with respect to dividend and
liquidation rights. Because of its broad discretion with respect to the
creation and issuance of any series of Preferred Stock without stockholder
approval, the Board of Directors of the Company could adversely affect the
voting power of the holders of Common Stock, and, by issuing shares of
Preferred Stock with certain voting, conversion and/or redemption rights,
could discourage any attempt to obtain control of the Company in any
transaction not approved by the Board of Directors, including a hostile
tender offer.
GENERAL
-------
All issued and outstanding Common Shares are fully paid and
nonassessable, and all Common Shares offered hereby will be fully paid and
nonassessable when issued.
The Transfer Agent and Registrar for the Company's Common Shares
and Preferred Shares is Chemical Trust Company of California, Los Angeles,
California.
WW has and will continue to distribute annual reports to its
shareholders which will contain its audited financial statements.
LEGAL MATTERS
The validity of the WW common Shares offered hereby will be
passed upon for WW by Sheppard, Mullin, Richter & Hampton, Los Angeles,
California.
EXPERTS
The consolidated financial statements of Western Waste Industries
appearing in Western Waste Industries' Annual Report (Form 10-K) for the
year ended June 30, 1994, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
No dealer, salesperson or other person has been authorized to
give any information or to make any representation, other than those
contained in this Prospectus, in connection with the offer made by this
Prospectus, and if given or made, such information or representations must
not be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
-16-
Page 16 of 29 <PAGE>
circumstances, create an implication that there has been no change in the
affairs of the Company since the date hereof. This Prospectus does not
constitute an offer or solicitation by anyone in any jurisdiction in which
such offer or solicitation is not authorized or in which the person making
such offer is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
-17-
Page 17 of 29 <PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Pursuant to
provisions of the California General Corporation Law, the Company's
Restated Articles of Incorporation include a provision that eliminates the
personal liability of its directors to the Company and its shareholders for
monetary damages to the fullest extent permissible under California law.
This limitation has no effect on a director's liability (i) for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of the law, (ii) for acts or omissions that a director believes
to be contrary to the best interests of the Company or its shareholders or
that involve the absence of good faith on the part of the director,
(iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard
for the director's duty to the Company or its shareholders in circumstances
in which the director was aware, or should have been aware, in the ordinary
course of performing a director's duties, of a risk of a serious injury to
the Company or its shareholders, (v) for acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
directors duty to the Company or its shareholders (vi) under Section 310 of
the California General Corporation Law (concerning contracts or trans-
actions between the corporation and a director) or (vii) under Section 316
of the California General Corporation Law (directors' liability for
improper dividends, loans and guarantees). The provision does not elim-
inate liability of a director for any act or omission which occurred prior
to August 8, 1988, the effective date of the amendment of the Company's
Restated Articles of Incorporation and it does not eliminate or limit the
liability of an officer for any act or omission as an officer, notwith-
standing that the officer is also a director or that his or her actions, if
negligent or improper, have been ratified by the Board of Directors.
Further, the provision has no effect on claims arising under federal or
state securities laws and does not affect the availability of injunctions
and other equitable remedies available to the Company's shareholders for
any violation of a director's fiduciary duty to the Company or its
shareholders. Although the validity and scope of the legislation
underlying the provision has not yet been interpreted to any significant
extent by the California courts, the provision may relieve directors of
monetary liability to the Company for grossly negligent conduct, including
conduct in situations involving attempted takeovers of the Company.
The Company's Restated Articles of Incorporation also include a
section authorizing the Company to indemnify its officers, directors and
other agents through bylaw provisions, agreements, vote of shareholders or
disinterested directors or otherwise, to the fullest extent permitted by
law. The Company's Bylaws permit the Company to indemnify its directors,
officers, employees and other agents to the fullest extent permitted by
law. The Company's Bylaws and Restated Articles of Incorporation expressly
authorize the use of indemnity agreements. The Company's Bylaws and
Articles of Incorporation may require the Company, among other things, to
indemnify such directors, officers, employees and other agents for certain
liabilities that may arise by reason of service of directors, officers,
employees or agents (other than liabilities from willful misconduct of a
II-1
Page 18 of 29 <PAGE>
culpable nature), to advance expenses to them as they are incurred,
provided that they undertake to repay the amount advanced if it is
ultimately determined by a court that they are not entitled to
indemnification and to obtain directors' and officers' insurance. The
Company has entered into indemnification agreements with all of its
directors and executive officers whereby the Company will indemnify each
such person (an "Indemnitee") against certain claims arising out of certain
past, present or future acts, omissions or breaches of duty committed by an
Indemnitee while serving in his or her employment capacity. Such
indemnification does not apply to acts or omissions which are knowingly
fraudulent, deliberately dishonest or arise from willful misconduct.
Indemnification will only be provided to the extent that the Indemnitee has
not already received payments in respect of such claim from the Company or
from an insurance company.
Section 317 of the California General Corporation Law makes
provision for the indemnification of officers, directors and other
corporate agents in terms sufficiently broad to indemnify such persons,
under certain circumstances, for liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933, as amended
(the "Act").
Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
Item 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
Exhibit
No. Description of Document
------- -----------------------
4.1 Restated Articles of incorporation, as amended.<F1>
4.2 Restated By-laws, as amended.<F1>
5 Opinion of Sheppard, Mullin, Richter & Hampton
23.1 Consent of Ernst & Young LLP
23.2 Consent of Sheppard, Mullin, Richter & Hampton (see Exhibit 5
above)
24 Powers of Attorney
II-2
Page 19 of 29 <PAGE>
[FN]
<F1> Incorporated herein by reference to the Company's Registration
Statement on Form S-1, Registration No. 2-83121.
All schedules are omitted because they are not applicable or not
required or because the required information is shown in the financial
statements or notes thereto.
Item 22. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the 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 the
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Act, each post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) 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) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
II-3
Page 20 of 29 <PAGE>
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(d) The undersigned registrant hereby undertakes as follows:
prior to any public offering of the securities registered hereunder through
use of a prospectus which is a part of this registration statement, by any
person or party who is deemed to be an underwriter within the meaning of
Rule 145(c), the issuer undertakes that such reoffering prospectus will
contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other items of the applicable
form.
(e) The undersigned registrant undertakes that every prospectus
(i) that is filed pursuant to the immediately preceding paragraph or
(ii) that purports to meet the requirements of Section 10(a)(3) of the Act
and is used in connection with the offering of securities subject to
Rule 415, except to the extent permitted to be filed as a prospectus
supplement, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that,
for purposes of determining any liability under the 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 bona fide offering
thereof.
(f) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to items 4, 10(b), 11, or 13 of this Form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date
of the registration statement through the date of responding to the
request.
(g) The undersigned registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein, that was not
the subject of and included in the registration statement when it became
effective, except where the transaction in which the securities being
offered pursuant to this registration statement would itself qualify for an
exemption from Section 5 of the Act, absent the existence of other similar
(prior or subsequent) transactions.
II-4
Page 21 of 29 <PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant has duly caused this Registration Statement or
Amendment to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Torrance, State of California on the 12th day of
April, 1995.
WESTERN WASTE INDUSTRIES
By: /s/ Kosti Shirvanian
-------------------------
Kosti Shirvanian
Chairman of the Board and
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendment has been signed below by the following
persons in the capacities and on the dates indicated.
/s/ Kosti Shirvanian Chairman of the Board of April 12, 1995
----------------------- Directors and President
Kosti Shirvanian (Principal Executive Officer)
/s/ Ramsey G. DiLibero Chief Operating Officer and April 12, 1995
----------------------- Director
Ramsey G. DiLibero
/s/Lawrence F. McQuaide Executive Vice President, April 12, 1995
----------------------- Finance (Principal Financial
Lawrence F. McQuaide and Accounting Officer)
Executive Vice President, April __, 1995
----------------------- Secretary-Treasurer and
Savey Tufenkian Director
/s/ John W. Simmons Director April 12, 1995
-----------------------
John W. Simmons*
/s/ Harry S. Derbyshire Director April 12, 1995
-----------------------
Harry S. Derbyshire*
II-5
Page 22 of 29 <PAGE>
/s/ Dr. A.N. Mosich Director April 12, 1995
-----------------------
Dr. A.N. Mosich*
*By: /s/ Kosti Shirvanian
------------------------------
Kosti Shirvanian
Attorney-in-Fact
April 12, 1995
II-6
Page 23 of 29 <PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Document Page
-------- ----------------------- ----
5 Opinion of Sheppard, Mullin, Richter & Hampton . . . 25
23.1 Consent of Ernst & Young LLP . . . . . . . . . . . . 27
23.2 Consent of Sheppard, Mullin, Richter & Hampton . . . 28
24 Powers of Attorney . . . . . . . . . . . . . . . . . 29
II-7
Page 24 of 29 <PAGE>
SHEPPARD, MULLIN, RICHTER & HAMPTON
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
TELEPHONE: (213) 620-1780
--------
FACSIMILE (213) 620-1398
CABLE SHEPLAW
TELEX 19-4424
--------
EXHIBIT 5
April 12, 1995
Our File Number
LFE-51322
Western Waste Industries
21061 South Western Avenue
Torrance, California 90501
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel for Western Waste Industries, a
California corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended, of
3,000,000 shares of the Company's Common Stock, no par value (the
"Shares"), pursuant to a Registration Statement on Form S-4 (the
"Registration Statement").
As your counsel, we have examined such documents as we have
considered necessary for purposes of this opinion, including without
limitation the Restated Articles of Incorporation and By-Laws of the
Company and resolutions adopted by the Board of Directors of the
Company. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals and the conformity to authentic originals of all documents
submitted to us as certified copies or photocopies. In rendering the
opinions expressed below, we have relied on factual representations by
Company officials and statements of fact contained in the documents we
have examined.
Page 25 of 29 <PAGE>
Western Waste Industries
April 12, 1995
Page 2
On the basis of the foregoing and having regard for legal
considerations we deem relevant, we are of the opinion that the
Shares, when sold in the manner described in the Registration
Statement, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name
wherever appearing in the Registration Statement, including the
prospectus constituting a part thereof, and any amendment thereto,
which has been approved by us.
Very truly yours,
/s/ SHEPPARD, MULLIN, RICHTER & HAMPTON
Page 26 of 29 <PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" included in the Proxy Statement of Western Waste Industries which
is made part of the Registration Statement (Form S-4, No. 33-XXXXX) and
Prospectus of Western Waste Industries for the registration of 3,000,000
shares of its common stock and to the incorporation by reference therein of
our report dated August 26, 1994, with respect to the consolidated
financial statements of Western Waste Industries included in its Annual
Report (Form 10-K/A No. 2) for the year ended June 30, 1994, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Long Beach, California
April 12, 1995
Page 27 of 29 <PAGE>
Exhibit 23.2
CONSENT OF SHEPPARD, MULLIN, RICHTER & HAMPTON
(See Exhibit 5 above)
Page 28 of 29 <PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints Kosti Shirvanian and Savey Tufenkian, 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 a Registration Statement on Form S-4
(the "Registration Statement") relating to the registration of up to
3,000,000 shares of the Common Stock of Western Waste Industries ("WW"),
and all amendments (including post-effective amendments) thereto, to the
extent permitted by Item 601(b)(24) of Regulation S-K under the Securities
Act of 1933, as amended, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, 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 and 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 their substitute or 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 Power of Attorney and the Registration Statement and any
amendments thereto have been signed below by the following person in the
capacity and as of the date indicated.
Signature Title Date
--------- ----- ----
/s/ Harry S. Derbyshire
----------------------- Director April 7, 1995
Harry S. Derbyshire
/s/ A.N. Mosich
----------------------- Director April 7, 1995
A.N. Mosich
/s/ John W. Simmons
----------------------- Director April 7, 1995
John W. Simmons
Page 29 of 29 <PAGE>
