AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 7, 1995
REGISTRATION NO. 33-37684
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALLWASTE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 4212 74-2427167
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
5151 SAN FELIPE, SUITE 1600
HOUSTON, TEXAS 77056-3609
(713) 623-8777
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ALLWASTE EMPLOYEE RETIREMENT PLAN
(FORMERLY KNOWN AS THE ALLWASTE RETIREMENT SAVINGS PLAN)
(Full title of plan)
------------
William L. Fiedler
Vice President, General Counsel and Secretary
Allwaste, Inc.
5151 San Felipe, Suite 1600
Houston, Texas 77056-3609
(713) 623-8777
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
PART II
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(1) The registrant's Annual Report on Form 10-K for the fiscal year ended
August 31, 1994;
(2) The registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended November 30, 1994, February 28, 1995 and May 31, 1995;
and
(3) The description of the registrant's Common Stock contained in its
Registration Statement on Form 8-A (File No. 1-11008) filed with the
Securities and Exchange Commission pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating
such description.
In addition, all documents subsequently filed by the registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Amended and Restated Certificate of Incorporation of the Company (the
"Restated Certificate") provides for indemnification of Directors and Officers
in accordance with the Delaware General Corporation Law. The Twelfth Article of
the Restated Certificate as allowed under Section 102(b)(7) of the Delaware
General Corporation Law, provides as follows:
"A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit."
(Section 174 relates to dividend payments or stock repurchases made illegal
under Delaware Law.)
Article Thirteenth of the Restated Certificate, as allowed under Section
145 of the Delaware General Corporation Law, provides as follows:
"A. The Corporation shall 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 is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interest of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
"B. The Corporation shall 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 he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall 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 Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
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"C. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in A. and B., or in defense of
any claim, issue or matter therein, he shall be indemnified against
expenses (including attorney's fees) actually and reasonably incurred by
him in connection therewith.
"D. Any indemnification under paragraphs A. and B. of this Article
THIRTEENTH (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct
set forth in paragraphs A. and B. Such determination shall be made (1) by
the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion, or (3) by a majority of the stockholders.
"E. Expenses incurred in defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board
of Directors upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article THIRTEENTH.
"F. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
"G. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article THIRTEENTH.
"H. For purposes of this Article THIRTEENTH, references to "the
Corporation" shall include, in addition to the resulting Corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or
is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under the provisions of this Article THIRTEENTH with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
"I. For purposes of this Article THIRTEENTH, references to `other
enterprises' shall include employee benefit plans; references to `fines'
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to `serving at the request of the
Corporation' shall include any service as a director, officer, employee or
agent of the Corporation which imposes
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duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner `not opposed to the best interests of the Corporation' as
referred to in this Article THIRTEENTH.
"J. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article THIRTEENTH shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person."
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits have been filed as part of this registration
statement:
EXHIBIT
NO. EXHIBIT DESCRIPTION
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4.1 -- Allwaste Retirement Savings Plan effective October 1, 1990. (Exhibit
4.1 of the Allwaste, Inc. Registration Statement on Form S-8 (File
No. 33-37684) filed November 8, 1990, is hereby incorporated by
reference.)
4.2 -- Allwaste Retirement Savings Trust effective October 1, 1990.
(Exhibit 4.2 of the Allwaste, Inc. Registration Statement on Form
S-8 (File No. 33-37684) filed November 8, 1990, is hereby
incorporated by reference.)
4.3 -- Allwaste Employee Retirement Plan and Trust adopted effective July
1, 1995 as a complete amendment and restatement to the Allwaste
Retirement Savings Plan (Exhibit 10.9 of the Allwaste, Inc.
Quarterly Report on Form 10-Q for the quarter ended May 31, 1995
(File No. 1-11016) is hereby incorporated by reference.)
5.1 -- Opinion of Douglas M. Cerny, Esq., Vice President, General Counsel
and Secretary of Allwaste, Inc. (Exhibit 5.1 of the Allwaste, Inc.
Registration Statement on Form S-8 (File No. 33-37684) filed
November 8, 1990, is hereby incorporated by reference.)
23.1 -- Consent of Arthur Andersen LLP (filed herewith).
23.2 -- Consent of Douglas M. Cerny, Esq. (included in Exhibit 5.1
incorporated by reference herein).
24.1 -- Power of Attorney (included on the signature page hereto).
In lieu of the opinion of counsel or determination letter contemplated by
Item 602(b)(5) of Regulation S-K, the registrant hereby confirms that it
undertakes to submit the Plan and all amendments thereto to the Internal Revenue
Service ("IRS") in a timely manner, and that it will make all changes required
by the IRS in order to qualify the Plan under Section 401 of the Internal
Revenue Code.
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ITEM 9. UNDERTAKINGS
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;
(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;
(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;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (1)(i)
and (1)(ii) above do not apply if the registration statement is on Form
S-3 and S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment may be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time may 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and each filing of the annual report of the Plan pursuant to
Section 25(d) of the Securities Exchange Act of 1934, as amended) 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the SEC such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURE PAGE
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it meets all of the requirements for filing on
Form S-8 and has duly caused this Post-Effective Amendment to Registration
Statement on Form S-8 (File No. 33-37684) to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston and the State of
Texas, on this 21st day of July, 1995.
ALLWASTE, INC.
By: /s/ ROBERT M. CHISTE
Robert M. Chiste, President
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of Allwaste, Inc., do hereby
constitute and appoint Robert M. Chiste or William L. Fiedler or either of them,
our true and lawful attorneys and agents, to do any and all acts and things in
our name and on our behalf in our capacities as directors and officers, and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the filing of this
Post-Effective Amendment to Registration Statement on Form S-8 (File No.
33-37684), including specifically, without limitation, power and authority to
sign for any of us, in our names in the capacities indicated below, any and all
further amendments hereto or thereto; and we do each hereby ratify and confirm
all that the said attorneys and agents, or either of them, shall do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this post-effective amendment to registration statement has been signed by the
following persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ROBERT M. CHISTE President and Chief Executive Officer July 21, 1995
Robert M. Chiste (Principal Executive Officer), Director
/s/ DARREN B. MILLER Vice President and Controller (Principal
Darren B. Miller Accounting and Financial Officer) July 21, 1995
/s/ R. L. NELSON, JR. Chairman of the Board July 21, 1995
R. L. Nelson, Jr.
/s/ MICHAEL A. BAKER Director July 21, 1995
Michael A. Baker
__________________________ Director July , 1995
David H. Batchelder
/s/ RICARDO J. BESQUIN L. Director July 21, 1995
Ricardo J. Besquin L.
/s/ FRED M. FERREIRA Director July 21, 1995
Fred M. Ferreira
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__________________________ Director July , 1995
John U. Clarke
__________________________ Director July , 1995
Robert L. Knauss
/s/ FLETCHER THORNE-THOMSEN Director July 21, 1995
Fletcher Thorne-Thomsen
/s/ THOMAS J. TIERNEY Director July 21, 1995
Thomas J. Tierney
/s/ T. MICHAEL YOUNG Director July 21, 1995
T. Michael Young
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the Allwaste
Employee Retirement Plan has duly caused this post-effective amendment to
registration statement to be signed on its behalf by the undersigned thereunto
duly authorized in the City of Houston and the State of Texas, on the 21st day
of July, 1995.
ALLWASTE RETIREMENT SAVINGS PLAN COMMITTEE
/s/ ANDREW E. ESTRADA
Andrew E. Estrada
/s/ WILLIAM L. FIEDLER
William L. Fiedler
/s/ DARREN B. MILLER
Darren B. Miller
________________________
Richard L. White
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EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NO. EXHIBIT DESCRIPTION PAGE NUMBER(*)
------- ------------------- --------------
4.1 -- Allwaste Retirement Savings Plan effective October 1,
1990. (Exhibit 4.1 of the Allwaste, Inc. Registration
Statement on Form S-8 (File No. 33-37684) filed
November 8, 1990, is hereby incorporated by reference.)
4.2 -- Allwaste Retirement Savings Trust effective October 1,
1990. (Exhibit 4.2 of the Allwaste, Inc. Registration
Statement on Form S-8 (File No. 33-37684) filed
November 8, 1990, is hereby incorporated by reference.)
4.3 -- Allwaste Employee Retirement Plan and Trust adopted
effective July 1, 1995 as a complete amendment and
restatement to the Allwaste Retirement Savings Plan
(Exhibit 10.9 of the Allwaste, Inc. Quarterly Report on
Form 10-Q for the quarter ended May 31, 1995 (File No.
1-11016) is hereby incorporated by reference.)
5.1 -- Opinion of Douglas M. Cerny, Esq., Vice President,
General Counsel and Secretary of Allwaste, Inc. (Exhibit
5.1 of the Allwaste, Inc. Registration Statement on Form
S-8 (File No. 33-37684) filed November 8, 1990, is hereby
incorporated by reference.)
23.1 -- Consent of Arthur Andersen LLP (filed herewith).
23.2 -- Consent of Douglas M. Cerny, Esq. (included in
Exhibit 5.1 incorporated by reference herein).
24.1 -- Power of Attorney (included on the signature page hereto)
(*) This information appears only in the sequentially-numbered original.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated November 18,
1995 included in Allwaste, Inc.'s Form 10-K for the year ended August 31, 1994
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
HOUSTON, TEXAS
AUGUST 7, 1995
