<PAGE>
LAW OFFICES
DRINKER BIDDLE & REATH LLP
PHILADELPHIA NATIONAL BANK BUILDING
1345 CHESTNUT STREET
PHILADELPHIA, PA 19107-3496
Telephone: (215) 988-2700
Fax: (215) 988-2757
June 20, 1997
VIA EDGAR TRANSMISSION
- ----------------------
Securities and Exchange Commission
450 Fifth Street, N.W.,
Washington, D.C. 20549
Re: Eastern Environmental Services Inc. Post-Effective Amendment
No. 1 to Registration Statement on Form S-8 (No. 333-28627)
1996 Stock Option Plan
------------------------------------------------------------
Ladies and Gentlemen:
On behalf of the above referenced registrant (the "Registrant"), I am
transmitting electronically for filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 (No. 333-28627) with
exhibits. No filing fee is required for the filing.
Please direct any questions regarding the Form S-8 to me at (215) 988-2617.
Very truly yours,
/s/ Joseph J. Kornblum
Joseph J. Kornblum
<PAGE>
As filed with the Securities and Exchange Commission on June 20, 1997
Registration Statement No. 333-28627
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
POST-EFFECTIVE AMENDMENT NO. 1
------------------------------
to
--
F O R M S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
EASTERN ENVIRONMENTAL SERVICES, INC.
- --------------------------------------------------------------------------------
(Exact Name of Registrant as Specified in Charter)
Delaware 59-2840783
-------------------------------- -----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 Crawford Place
Mt. Laurel, New Jersey 08054
(609) 235-6009
--------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
EASTERN ENVIRONMENTAL SERVICES, INC.
1996 Stock Option Plan
----------------------
(Full title of the plan)
Louis D. Paolino, Jr., Chairman
of the Board, President and Chief Executive Officer
1000 Crawford Place
Mt. Laurel, New Jersey 08054
(609) 235-6009
-------------------------------------------
(Name and address of agent for service)
(609) 235-6009
--------------
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
H. John Michel, Jr., Esquire
Drinker Biddle & Reath LLP
1345 Chestnut Street
Philadelphia, Pennsylvania 19107-3496
- 1 -
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
Proposed maximum Proposed maximum
Title of Shares to Amount to be offering price per aggregate offering Amount of
be registered registered (1) share (2) price (2) registration fee(3)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 75,000 $ 5.25 $ 393,750.00
($.01 par value)
- ------------------------------------------------------------------------------------------------------
30,000 $ 5.38 $ 161,400.00
- ------------------------------------------------------------------------------------------------------
325,000 $ 5.75 $ 1,868,750.00
- ------------------------------------------------------------------------------------------------------
17,433 $ 6.25 $ 108,956.25
- ------------------------------------------------------------------------------------------------------
250,000 $ 6.33 $ 1,582,500.00
- ------------------------------------------------------------------------------------------------------
30,000 $ 6.38 $ 191,400.00
- ------------------------------------------------------------------------------------------------------
57,500 $ 6.50 $ 373,375.00
- ------------------------------------------------------------------------------------------------------
484,010 $ 6.63 $ 3,208,986.30
- ------------------------------------------------------------------------------------------------------
100,000 $ 6.83 $ 683,000.00
- ------------------------------------------------------------------------------------------------------
50,000 $ 6.88 $ 344,000.00
- ------------------------------------------------------------------------------------------------------
39,000 $ 7.25 $ 282,750.00
- ------------------------------------------------------------------------------------------------------
15,000 $ 8.00 $ 120,000.00
- ------------------------------------------------------------------------------------------------------
50,000 $ 8.50 $ 425,000.00
- ------------------------------------------------------------------------------------------------------
5,000 $ 9.00 $ 45,000.00
- ------------------------------------------------------------------------------------------------------
142,800 $10.875 $ 1,552,950.00
- ------------------------------------------------------------------------------------------------------
122,500 $13.00 $ 1,592,500.00
- ------------------------------------------------------------------------------------------------------
706,757 $14.4375 $10,203,804.19
- ------------------------------------------------------------------------------------------------------
TOTAL 2,500,000 $23,141,121.74 $7,013
======================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement also registers such
indeterminate number of additional shares as may become issuable under the
Plan in connection with share splits, share dividends or similar
transactions.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee. As to shares subject to outstanding but unexercised
options, the price and fee are computed based upon the price at which such
options may be exercised. As to the remaining shares, the price and fee are
computed based upon $14.4375, the average of the high and low prices for
the common stock reported on the NASDAQ National Market System on June 2,
1997.
(3) Fee previously paid with filing of the Registration Statement on June 6,
1997. No fee is due for the filing of this Post-Effective Amendment No. 1
to the Registration Statement.
- 2 -
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Eastern
Environmental Services, Inc. (the "Registrant" or the "Company") with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
June 30, 1996 (filed October 1, 1996) (as amended on Form 10-K/A filed
October 28, 1996);
(b) the Company's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1996 (filed November 14, 1996), December 31, 1996
(filed February 15, 1996) and March 31, 1997 (filed May 15, 1997), (as
amended on Form 10-Q/A filed May 16, 1997);
(c) the Company's Current Reports on Form 8-K dated June 21, 1996
(filed July 4, 1996), July 2, 1996 (filed July 17, 1997) (as amended on
Forms 8-K/A filed September 16, 1996, May 13, 1997 and June 6, 1997),
September 27, 1996 (filed October 12, 1996) (as amended on Form 8-K/A
filed December 9, 1996 and June 6, 1997), December 10, 1996 (filed
December 24, 1996) (as amended on Form 8-K/A filed February 11, 1997 and
June 6, 1997), January 31, 1997 (filed February 15, 1997) (as amended on
Form 8-K/A filed April 15, 1997), March 31, 1997 (filed April 9, 1997) (as
amended on Form 8-K/A filed May 15, 1997), May 8, 1997 (filed May 22,
1997) and May 12, 1997 (filed May 22, 1997);
(d) the description of the common stock, par value $.01 per
share, of the Company (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A (File No. 0-16012), filed with the
Securities and Exchange Commission, including any amendments or reports
filed for the purpose of updating such description;
(e) the Company's financial statements as of June 30, 1996 and
June 30, 1995 and for each of the three years in the period ended June 30,
1996 included in Form S-3 filed with the Securities and Exchange
Commission on May 16, 1997; and
(f) all other reports filed pursuant to Sections 13(a) or (15)
(d) of the Securities Exchange Act of 1934 since June 30, 1997.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered pursuant to
this Registration Statement have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable because the Common Stock, which is the class of
securities offered pursuant to this Registration Statement, is registered under
the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
- 3 -
<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in general, that a corporation incorporated
under the laws of the State of Delaware, such as the Company, 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 (other than an
action by or in the right of the corporation) by reason of the fact that such
person 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 enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person 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
such person's conduct was unlawful. In the case of an action by or in the right
of the corporation, a Delaware corporation may indemnify any such person against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, 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 court determines such person is fairly
and reasonable entitled to indemnity for such expenses.
Article Tenth, Paragraph (a) of the Company's Certificate of
Incorporation, as amended, provides that each person who was or is made a party
to or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another company or of a partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, whether or not the basis of such proceeding is alleged action in
any official capacity as a director, officer, employee or agent, or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Company to the fullest extent authorized by
the DGCL, as the same exists or may hereafter be amended (but, in the case of
any such amendment only to the extent that such amendment permits the Company to
provide broader indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith. Such indemnification continues as to a
person who has ceased to be director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, and inures to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in Paragraph (b) of the Article Tenth (as
described below), the Company shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors of the Company. Article Tenth, Paragraph (a) of the Company's
Certificate of Incorporation further provides that such right to indemnification
shall be a contact right and shall include the right to be paid by the Company
the expenses incurred in defending any such proceeding in advance of its final
disposition, provided however, that, if the DGCL requires, the payment of such
expenses incurred by a director or officer (in his or her capacity as a
director or
- 4 -
<PAGE>
officer and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a proceeding
shall be made only upon delivery to the Company of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under the Certificate of Incorporation or otherwise. The Company
may, by action of its Board of Directors, provide indemnification to employees
and agents of the Company with the same scope and effect as the foregoing
indemnification of directors and officers. The foregoing right to
indemnification and advancement of expenses is not exclusive.
Article Tenth, Paragraph (b) of the Company's Certificate of
Incorporation provides further that if a claim described under Paragraph (a) of
Article Tenth is not paid in full by the Company within thirty days after a
written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim and, if successful, in whole or in part, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the Company)
that the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Company to indemnify the
claimant for the amount claimed, but the burden of providing such defense shall
be on the Company. Neither the failure of the Company (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant
has not met such applicable standard or conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
As permitted by Article Eleventh of the Certificate of Incorporation
and Section 145 (g) of the DGCL, the directors and officers of the Company and
its subsidiaries are covered by policies of insurance under which they are
insured, within limits and subject to certain limitations, against certain
expenses in connection with the defense of actions, suits or proceedings, and
certain liabilities which might be imposed as a result of such actions, suits or
proceedings, in which they are parties by reason of being or having been
directors or officers; the Company is similarly insured, with respect to certain
payments it might be required to make to its directors or officers under the
applicable statutes and its charter provisions.
Reference is made to Item 9 of this Registration Statement for
additional information regarding indemnification of directors and officers.
Item 7. Exemption from Registration Claimed.
No restricted securities are being reoffered or resold pursuant to
this Registration Statement.
Item 8. Exhibits.
4 Eastern Environmental Services, Inc. 1996 Stock Option Plan.
- 5 -
<PAGE>
5 Opinion of Drinker Biddle & Reath LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Bardall, Weintraub P.C.
23.3 Consent of BDO Seidman, LLP.
23.4 Consent of Boyer & Ritter.
23.5 Consent of B.J. Klinger & Co. P.C.
23.6 Consent of Paternostro, Callahan & DeFreitas, LLP.
23.7 Consent of Daniel P. Irwin and Associates P.C.
23.8 Consent of Drinker Biddle & Reath LLP (Included in Exhibit 5).
25(a) Powers of Attorney.
Item 9. Undertakings
1. Undertakings Required by Regulation S-K Item 512(a)
---------------------------------------------------
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made
pursuant to this Registration Statement, 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 this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in this 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 (1)(i) and (1)(ii) above do 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 Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
- 6 -
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
2. Undertakings Required by Regulation S-K Item 512(b).
---------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
3. Undertakings Required by Regulation S-K Item 512 (h).
----------------------------------------------------
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in 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.
- 7 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Mt. Laurel, New Jersey, on June 19, 1997.
EASTERN ENVIRONMENTAL SERVICES, INC.
By:/s/ Louis D. Paolino, Jr.
----------------------------------
Louis D. Paolino, Jr.,
Chairman of the Board,
Chief Executive Officer
and President
* 1 moved from here; text not shown
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Louis D. Paolino, Jr. Chairman of the Board, June 19, 1997
- ------------------------ Chief Executive Officer,
Louis D. Paolino, Jr. President and Director
(Principal Executive
Officer)
/s/ Gregory M. Krzemien Chief Financial Officer June 19, 1997
- ------------------------ and Treasurer
Gregory M. Krzemien (Principal Financial and
Accounting Officer)
*2 moved from here; text not shown
* Director June 19, 1997
- ------------------------
George O. Moorehead
*3 moved from here; text not shown
* Director June 19, 1997
- ------------------------
Kenneth C. Leung
*Gregory M. Krzemien, pursuant to a Power of Attorney executed by each of the
directors and officers noted above and included on the signature page of the
initial filing of this Registration Statement, by signing his name hereto, does
hereby sign and execute this Amendment No. 1 to the Registration Statement on
behalf of each of the persons noted above, in the capacities indicated, and does
hereby sign and execute this Post-Effective Amendment No. 1 to the Registration
Statement in the capacity indicated.
*/s/ Gregory M. Krzemien
- -------------------------
Gregory M. Krzemien
</TABLE>
- 8 -
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4 Eastern Environmental Services, Inc. 10
1996 Stock Option Plan
5 Opinion of Drinker Biddle & Reath LLP 18
23.1 Consent of Ernst & Young LLP 21
23.2 Consent of Bardall, Weintraub P.C. 23
23.3 Consent of BDO Seidman, LLP 25
23.4 Consent of Boyer & Ritter 27
23.5 Consent of B.J. Klinger & Co. P.C. 29
23.6 Consent of Paternostro, Callahan & 31
DeFrietas, LLP
23.7 Consent of Daniel P. Irwin and 33
Associates P.C.
23.8 Consent of Drinker Biddle & Reath LLP
(Included in Exhibit 5)
25 Powers of Attorney 35
</TABLE>
- 9 -
<PAGE>
EXHIBIT 4
- 10 -
<PAGE>
EASTERN ENVIRONMENTAL SERVICES, INC.
1996 STOCK OPTION PLAN
ARTICLE 1
General
-------
1.1 Purpose. This incentive stock option and nonqualified stock option
-------
plan (the "Plan") is established to promote the interests of Eastern
Environmental Services, Inc. (the "Corporation") and its stockholders by
enabling the Corporation, through the granting of stock options, to attract and
retain personnel for the Corporation and its subsidiaries, and to provide
additional incentive to such personnel to increase their stock ownership in the
Corporation. It is intended that those options issued pursuant to the
provisions of the Plan relating to incentive stock options shall constitute
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code of 1986, an amended, and the regulations promulgated thereunder, or
any statute or regulation of similar import.
1.2 Administration.
--------------
(a) The incentive stock option and nonqualified stock option
provisions of the Plan shall be administered by the Board of Directors of the
Corporation, and the Board of Directors may delegate such administration to a
committee appointed by the Board of Directors of the Corporation (the
"Committee"). The Committee shall consist of not less than two (2) nor more
than five (5) persons, each of whom shall be a member of the Corporation's Board
of Directors. The Board of Directors may from time to time remove members from,
or add members to, the Committee. Vacancies on the Committee, howsoever caused,
shall be filled by the Board of Directors. In the event that the Board of
Directors elects not to delegate such administration to the Committee, all
references herein to the Committee shall be deemed to refer to the Board of
Directors.
(b) The Committee shall select one of its members as chairman,
and shall hold meetings at such time and places as it may determine. The acts
of a majority of the Committee at which a quorum is present, or acts reduced to
or approved in writing by a majority of the members of the Committee, shall be
valid acts of the Committee.
(c) Subject to the provisions of the Plan, the Committee shall
have full authority, in its discretion: (1) to determine the employees of the
Corporation and its subsidiaries to whom stock options shall be granted; (2) to
determine the time or times at which stock options shall be granted; (3) to
determine whether an eligible employee shall be granted an incentive stock
option, a nonqualified stock option or any combination thereof; (4) to determine
the option price of the shares subject to each stock option; (5) to determine
the time or times when each stock option becomes exercisable and the duration of
any stock option period; and, (6) to interpret the Plan and the stock options
granted hereunder, and to prescribe, amend and rescind rules and regulations
with respect thereto. The interpretation and construction by the Committee of
any provision of the Plan over which it has discretionary authority or of any
option granted hereunder shall be final and conclusive.
(d) No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any stock option
granted hereunder.
- 11 -
<PAGE>
1.3 Eligible Employees. A stock option may be granted to any employee or
------------------
member of the Board of Directors of the Corporation or of the Corporation or of
a subsidiary (who may or may not be an officer or member of the Board of
Directors). With respect to the incentive stock options granted under the Plan,
employees who cannot qualify for the benefits of incentive stock options under
Section 422 of the Internal Revenue Code of 1986, as amended, may not be granted
incentive stock options.
1.4 Stock Subject to the Plan.
-------------------------
(a) The stock subject to the stock options under the Plan shall be
shares of common stock of the Corporation, par value $0.01 per share, which
shares may be, in whole or in part, either authorized but unissued shares or
issued shares hold in the treasury. The aggregate number of shares that may be
issued upon the exercise of stock options granted under the Plan shall not
exceed 2,500,000 shares of common stock, which limitation shall be subject to
adjustment as provided in Article IV of the Plan.
(b) If a stock option is surrendered or for any other reason ceases
to be exercisable in whole or in part, the shares of common stock that are
subject to such option, but as to which the option has not been exercised, shall
again become available for offering under the Plan.
1.5 Termination of Options.
----------------------
(a) Unless sooner terminated as provided in this Plan, each stock
option shall be exercisable for the period of time as shall be determined by the
Committee and set forth in each stock option agreement evidencing a stock option
("Option Agreement"), and shall be void and unexercisable thereafter.
(b) Except as otherwise provided herein or in an Option Agreement,
upon the termination of the optionee's employment with the Company for any
reason, stock options exercisable on the date of termination of employment shall
be exercisable by the optionee (or in the case of the optionee's death
subsequent to termination of employment, by the optionee's executor(s) or
administrator(s)) for a period of three (3) months from the date of the
optionee's termination of employment.
(c) Except as otherwise provided herein or in an Option Agreement,
upon the termination of the optionee's employment due to disability or death,
the stock options held by such optionee shall be exercisable for a period of
twelve (12) months commencing on the date of the optionee's termination of
employment. If the Optionee is mentally disabled or dead, the stock options may
be exercised as applicable, by the Optionee's legal guardian, by his executor(s)
or administrator(s).
(d) Stock options may be terminated at any time by agreement between
the Company and the optionee.
1.6 Forfeiture. Notwithstanding any other provision of this Plan, if the
----------
optionee's employment is terminated by the Company and the Board makes a good
faith determination that the optionee (i) has breached any material term or
provision of the optionee's employment agreement, or (ii) engaged in any type of
disloyalty to the Company, including without limitation, fraud, embezzlement,
theft, or dishonesty in the course of his employment, (iii) has been convicted
of a felony, (iv) has disclosed any proprietary information of the Company
without the consent of the Company, or (v) has breached the terms of any written
confidentiality agreement or any non-competition agreement with the Company in
any material respect, all unexercised stock options held by such optionee
shall terminate upon the date of such a finding.
- 12 -
<PAGE>
1.7 Method of Payment. Each stock option shall state the method of
-----------------
payment of the stock option price upon the exercise of the stock option. The
method of payment stated in the stock option shall include payment (a) in United
States dollars in cash or by check, bank draft or money order payable to the
order of the corporation, or (b) in the discretion of and in the manner
determined by the Committee, by the delivery of shares of stock of the
Corporation already owned by the optionee, or (c) by any other legally
permissible means acceptable to the Committee at the time of grant of the stock
option, or (d) in the discretion of the Committee, through a combination of (a),
(b) and (c) of this paragraph 1.7. If the option price is paid in whole or in
part through the delivery of shares of common stock, the decision of the
Committee with respect to the fair market value of such shares shall be final
and conclusive.
1.8 Terms and Exercise of Options. No stock option shall be exercisable
-----------------------------
either in whole or in part prior to the date it is vested. No stock option shall
be exercisable after the expiration of ten (10) years from the date it is
vested; or, in the case of a 10% stockholder, no stock option shall be
exercisable after the expiration of five (5) years from the date it is vested.
Not less than one hundred (100) shares may be exercised at any one time unless
the number exercised is the total number at the time exercisable under the stock
option.
Within the limits described above, the Committee may impose additional
requirements on the exercise of stock options, including, but without
limitation, the number of shares covered by the stock option that become
eligible to be exercised in any year and the expiration date of the stock
option. Subject to the provisions of the Plan and any of the terms and
conditions the Committee deems appropriate, the Committee in its discretion also
may accelerate the time at which a stock option may be exercised if, under
previously established exercise terms, such stock option was not immediately
exercisable in full.
1.9 Rights as a Stockholder. An optionee shall have no rights as a
-----------------------
stockholder with respect to any shares covered by his ISO until the date of the
issuance of a stock certificate to him for such shares after exercise of the
stock option. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Article IV.
1.10 Modification, Extension and Renewal of Options. Subject to the terms
----------------------------------------------
and conditions and within the limitations of the Plan, the Committee may modify,
extend or renew outstanding stock options granted under the Plan, or accept the
surrender of outstanding stock options (to the extent not theretofore exercised)
and authorize the granting of new options in substitution therefor (to the
extent not theretofore exercised). Notwithstanding the foregoing, however, no
modification of any stock option shall, without the consent of the optionee,
alter or impair any of the rights or obligations under any stock option
theretofore granted under the Plan.
1.11 Listing and Registration of Shares. Each stock option shall be
----------------------------------
subject to the requirement that if at any time the Committee shall determine, in
its discretion, that the listing, registration or qualification of the shares
covered thereby upon any securities exchange or under any state or federal laws,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the granting of such stock
option or the issuance or purchase of shares thereunder, such ISO may not be
exercised unless and until such listing, registration, qualification, consent or
approval shall have been affected or obtained free of any conditions not
acceptable to the Committee. Notwithstanding anything in the Plan to the
contrary, if the provisions of this paragraph 1.11 become operative, and if, as
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<PAGE>
a result thereof, the exercise of an stock option is delayed, then and in that
event, the term of the stock option shall not be affected.
1.12 Other Provisions. The stock option certificates or agreements
----------------
authorized under the Plan shall contain such other provisions, including,
without limitation, restrictions upon the exercise of the stock option, as the
Committee shall deem advisable. Any such certificate or agreement shall contain
such limitations and restrictions upon the exercise of the stock option as shall
be necessary in order that such incentive stock option will be an incentive
stock option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended, or to conform to any change in the law.
ARTICLE II
Terms and Conditions of Incentive Stock Options
-----------------------------------------------
Any incentive stock option ("ISO") granted pursuant to the Plan shall be
authorized by the Committee and shall be evidenced by certificates or agreements
in such form as the committee from time to time shall approve, which
certificates or agreements shall comply with and be subject to the terms and
conditions hereinafter specified.
2.1 Number of shares. Each ISO shall state the number of shares to which
----------------
it pertains.
2.2 Option Price. Each ISO shall state the option price, which price
------------
shall be determined by the Committee in its discretion. In no event, however,
shall such price be less than 100% of the fair market value of the shares of
common stock of the Corporation (determined under Article IV of the Plan) on the
date of the granting of the ISO; or, in the case of an individual who owns (at
the time the option is granted) more than 10% of the total combined voting power
of all classes of stock of the Corporation or of a parent or subsidiary
corporation (a "10% stockholder"), shall such price be less than 110% of such
fair market value.
2.3 Additional Limitation on Exercise of Options. An optionee may hold and
--------------------------------------------
exercise more than one ISO, but only on the terms and subject to the
restrictions hereafter set forth. The aggregate fair market value (determined
as of the time an ISO is granted) of the common stock of the Corporation with
respect to which ISOs are exercisable for the first time by an employee in any
calendar year under the Plan and under all other incentive stock option plans of
the Corporation and any parent and subsidiary corporations of the Corporation
(as those terms are defined in Section 425 of the Internal Revenue Code of 1996,
as amended) shall not exceed $100,000.
2.4 Notice of Grant of Option. Upon the granting of any ISO to an
-------------------------
employee, the Committee shall promptly cause such employee to be notified of the
fact that such ISO has been granted. The date on which the Committee approves
the grant of an ISO shall be considered to be the date on which such ISO is
granted.
2.5 Assignment.
----------
(a) No stock option shall be transferable by the optionee otherwise
than by will or the laws of descent and distribution.
(b) During the lifetime of the optionee, the stock option shall be
exercisable only by him and shall not be assignable or transferable and no other
person shall acquire any rights therein.
- 14 -
<PAGE>
ARTICLE III
Terms and Conditions of Nonqualified Stock Options
--------------------------------------------------
Any nonqualified stock option ("NSO") granted pursuant to the Plan shall be
authorized by the Committee and shall be evidenced by certificate or agreements
in such form as the Committee from time to time shall approve, which
certificates or agreements shall comply with and be subject to the terms and
conditions hereinafter specified.
3.1 Number of Shares. Each NSO shall state the number of shares to which
----------------
it pertains.
3.2 Option Price. Each NSO shall state the option price, which price
------------
shall be determined by the Committee in its discretion.
3.3 Assignment.
----------
(a) No NSO shall be transferable by the optionee otherwise than by
will or the laws of descent and distribution.
(b) During the lifetime of the optionee, the NSO shall be
exercisable only by him and shall not be assignable or transferable and no other
person shall acquire any rights therein.
3.4 Notice of Grant of Option. Upon the granting of any NSO to an
-------------------------
employee, the Committee shall promptly cause such employee to be notified of the
fact that such NSO has been granted. The date on which the Committee approves
the grant of an NSO shall be considered to be the date on which such NSO is
granted.
3.5 Rights as a Stockholder. An optionee shall have no rights as a
-----------------------
stockholder with respect to any shares covered by his NSO until the date of the
issuance of a stock certificate to him for such shares after exercise of the
NSO. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued,
except as provided in Article IV.
ARTICLE IV
Miscellaneous
-------------
4.1 Stock Adjustments.
-----------------
(a) In the event of any increase or decrease in the number of
issued shares of common stock of the Corporation resulting from a stock split or
other division or consolidation of shares or the payment of a stock dividend
(but only on the common stock) or any other increase or decrease in the number
of such shares effected without any receipt of consideration by the Corporation,
then, in any such event, the number of shares of common stock that remain
available under the Plan, the number of shares of common stock covered by each
outstanding option, and the purchase price per share of common stock covered by
each outstanding option shall be proportionately and appropriately adjusted for
any such increase or decrease.
(b) Subject to any required action by the stockholders, if any
change occurs in the shares of common stock of the Corporation by reason of any
- 15 -
<PAGE>
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or of any similar change affecting the shares of common
stock of the Corporation, then, in any such event, the number and type of
shares covered by each outstanding option, and the purchase price per share of
common stock covered by each outstanding option, shall be proportionately and
appropriately adjusted for any such change. A dissolution or liquidation of the
Corporation shall cause each outstanding option to terminate.
(c) In the event of a change in the common stock of the Corporation
as presently constituted that is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any change shall be deemed to be
shares of common stock within the meaning of the Plan.
(d) To the extent that the foregoing adjustments relate to stock or
securities of the Corporation, such adjustments shall be made by, and in the
discretion of, the Committee, whose determination in that respect shall be
final, binding and conclusive; provided, however, that any ISO granted pursuant
to this Plan shall not be adjusted in a manner that causes such ISO to fail to
continue to qualify an incentive stock option within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended.
(e) Except an hereinabove expressly provided in this paragraph 4.1,
an optionee shall have no rights by reason of any division or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in number of shares of stock of any class or by reason of
any dissolution, liquidation, merger of consolidation, or spin-off of assets or
stock of another corporation; and any issuance by the Corporation of shares of
stock of any class, securities convertible into shares of stock of any class or
warrants or options for shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or price
of shares of common stock subject to the option.
(f) The grant of any option pursuant to the Plan shall not affect
in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capita or business
structure or to merge or to consolidate, or to dissolve, to liquidate, to sell,
or to transfer all or any part of its business or assets.
4.2 Fair Market Value of Stock. For purposes of this Plan, the "fair
--------------------------
market value of the shares of the common stock of the Corporation" shall mean a
price, on the date of grant of any ISO no lower than the low of the day and as
high an established by the Committee. The price of the Corporation's common
stock shall be as reported on the Composite Tape, or if not reported thereon,
then such price as reported in the trading reports of the principal securities
exchange in the United States on which such stock is listed or if such stock is
not listed on a securities exchange in the United States, the closing price on
the over-the-counter market as reported by the NASDAQ (NASDAQ), or NASDAQ'S
successor, or if not reported on NASDAQ, the fair market value of such stock as
determined by the Committee in good faith and based on all relevant factors.
4.3 Term of the Plan. The ISOs and NSOs may be granted pursuant to the
----------------
provisions of the Plan from time to time within a period of ten (10) years from
the date the Plan in adopted by the Board of Directors of the Corporation, or
the date the Plan is approved by the stockholders, whichever is earlier.
4.4 Amendment of the Plan. The Board of Directors of the Corporation
---------------------
may, insofar as permitted by law, from time to time, with respect to any shares
at the time not subject to stock options, suspend, discontinue or terminate the
Plan or revise or amend it in any respect whatsoever. However, the Plan may not,
without
- 16 -
<PAGE>
the approval of the stockholders, be amended in any manner that will cause
incentive stock options issued under it to fail to most the requirements of
incentive stock options as defined in Section 422 of the Internal Revenue Code
of 1996, as amended.
4.5 Incentive Stock Option Plan. Except as provided in the Plan, the Plan
---------------------------
shall not affect the terms and conditions of any incentive stock options
heretofore or hereafter granted to any employee of the Corporation under any
incentive stock option plan of the Corporation or any parent or subsidiary
corporation; nor shall the Plan affect any of the rights of any employee to whom
such incentive stock option or options have been granted.
4.6 Application of Funds. The proceeds received by the Corporation from
--------------------
the sale of common stock pursuant to stock options will be used for general
corporate purposes.
4.7 No Obligation to Exercise. The granting of any stock option under the
-------------------------
Plan shall impose no obligation upon any optionee to exorcise such stock option.
4.8 No Implied Rights to Employees. The existence of the Plan, and the
------------------------------
granting of options under the Plan, shall in no way give any employee the right
to continued employment, give any employee the right to receive any options or
any additional options under the Plan, or otherwise provide any employee any
rights not specifically set forth in the Plan or in any options granted under
the Plan.
<PAGE>
EXHIBIT 5
- 18 -
<PAGE>
LAW OFFICES
DRINKER BIDDLE & REATH LLP
PHILADELPHIA NATIONAL BANK BUILDING
1345 CHESTNUT STREET
PHILADELPHIA, PA 19107-3496
Telephone: (215) 988-2700
Fax: (215) 988-2757
June 3, 1997
Eastern Environmental Services, Inc.
1000 Crawford Place
Mt. Laurel, NJ 08054
Gentlemen:
We have acted as counsel to Eastern Environmental Services, Inc.
(the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission of the Company's Registration Statement on
Form S-8 under the Securities Act of 1933 (the "Registration Statement) relating
to 2,500,000 shares of Common Stock of the Company, par value $.01 per share
(the "Shares"), issuable upon the exercise of options granted under the
Company's 1996 Stock Option Plan (the "Plan").
In this connection, we have reviewed originals or copies, certified
or otherwise identified to our satisfaction, of the Company's Certificate of
Incorporation, its By-Laws, resolutions of its Board of Directors and
stockholders, the Plan, and such other documents and corporate records as we
have deemed appropriate in the circumstances.
Based upon the foregoing and consideration of such questions of law
as we have deemed relevant, we are of the opinion that the issuance of the
Shares by the Company upon the exercise of stock options properly granted under
the Plan has been duly authorized by the necessary corporate action of the Board
of Directors and stockholders of the Company, and such Shares, upon exercise of
such options and payment therefor in accordance with the terms of the Plan, will
be validly issued, fully paid and nonassessable by the Company.
- 19 -
<PAGE>
The opinions expressed herein are limited to the federal laws of the
United States, the General Corporation Law of the State of Delaware and the laws
of the State of Pennsylvania.
We consent to the use of this opinion as an exhibit to the
Registration Statement. This does not constitute a consent under Section 7 of
the Securities Act of 1933 since we have not certified any part of such
Registration Statement and do not otherwise come within the categories of
persons whose consent is required under said Section 7 or the rules and
regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ DRINKER, BIDDLE & REATH LLP
-------------------------------
DRINKER, BIDDLE & REATH LLP
- 20 -
<PAGE>
EXHIBIT 23.1
- 21 -
<PAGE>
INDEPENDENT AUDITORS' REPORT
We consent to the incorporation by reference in this Amendment No. 1 to
the Registration Statement (Form S-8 No. 333-28627) pertaining to the 1996 Stock
Option Plan of Eastern Environmental Services, Inc. of our report dated May 13,
1997 on the consolidated financial statements of Eastern Environmental Services,
Inc. included in its Registration Statement on Form S-3 dated May 16, 1997,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
June 18, 1997
- 22 -
<PAGE>
EXHIBIT 23.2
- 23 -
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our report dated September 30, 1996 on the
financial statements of Super Kwik, Inc. and Waste Maintenance Services, Inc.,
appearing in Amendment No. 1 to the Current Report on Form 8-K of Eastern
Environmental Services, Inc. dated September 27, 1996 (as amended and filed with
the Commission on December 9, 1996 and June 6, 1997).
/s/ Bardall, Weintraub P.C.
-------------------------------
BARDALL, WEINTRAUB P.C.
Turnersville, New Jersey
June 19, 1997
- 24 -
<PAGE>
EXHIBIT 23.3
- 25 -
<PAGE>
INDEPENDENT AUDITORS' CONSENT
Allied Environmental Services, Inc. and Affiliates
Merrick, New York
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our reports relating to the combined financial
statements of Allied Environmental Services, Inc. and affiliates dated October
12, 1995 (except for Notes 1 and 7, which are June 25, 1996) for the five month
period ended November 30, 1996 and seven month period ended June 30, 1995 and
November 12, 1996 for the year ended June 30, 1996 included in the Eastern
Environmental Services Inc.'s Form 8-K dated July 2, 1996 (as amended on Forms
8-K/A dated September 16, 1996, May 13, 1997 and June 6, 1997).
/s/ BDO Seidman, LLP
----------------------------
BDO Seidman, LLP
Philadelphia, Pennsylvania
June 19, 1997
- 26 -
<PAGE>
EXHIBIT 23.4
- 27 -
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our reports dated December 27, 1996 on the
financial statements of R&A Bender, Inc. and R&A Bender Property, Ltd.,
appearing in Amendment No. 1 to the Current Report on Form 8-K of Eastern
Environmental Services, Inc. dated December 10, 1996 (as filed with the
Commission on February 11, 1997, and as further amended on June 6, 1997).
/s/ Boyer & Ritter
Chambersburg, Pennsylvania
June 19, 1997
- 28 -
<PAGE>
EXHIBIT 23.5
- 29 -
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our report dated August 19, 1996 on the
financial statements of Allied Environmental Services, Inc., Allied Mid-Atlantic
Inc., Allied Waste Management, Inc., & Allied Environmental Services West, Inc.,
appearing in Amendment No. 1 to the Current Report on Form 8-K of Eastern
Environmental Services, Inc. dated July 2, 1996 (as amended and filed with the
Commission on September 16, 1996, May 13, 1997 and June 6, 1997).
/s/ B.J. Klinger & Co., P.C.
----------------------------
B.J. Klinger & Co., P.C.
Great Neck, New York
June 19, 1997
- 30 -
<PAGE>
EXHIBIT 23.6
- 31 -
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our reports dated March 3, 1997 on the financial
statements of Donno Company, Inc., Residential Services, Inc., Suffolk Waste
Systems, Inc., and NRT Realty Corp., appearing in Amendment No. 1 to the Current
Report on Form 8-K of Eastern Environmental Services, Inc. dated January 31,
1997 (as amended and filed with the Commission on April 15, 1997).
/s/ Paternostro, Callahan & DeFrietas, LLP
------------------------------------------
Paternostro, Callahan & DeFrietas, LLP
Mineola, New York
June 18, 1997
- 32 -
<PAGE>
EXHIBIT 23.7
- 33 -
<PAGE>
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in this Amendment No. 1
to the Registration Statement on Form S-8 (No. 333-28627) of Eastern
Environmental Services, Inc. of our report dated April 22, 1997 on the financial
statement of Apex Waste Services, Inc. appearing in Amendment No. 1 to the
Current Report on Form 8-K of Eastern Environmental Services, Inc. dated March
31, 1997 (as amended and filed with the Commission on May 15, 1997).
/s/ Daniel P. Irwin and Associates P.C.
-----------------------------------------
Daniel P. Irwin and Associates P.C.
Stafford-Wayne, Pennsylvania
June 16, 1997
- 34 -
<PAGE>
EXHIBIT 25(a)
- 35 -
<PAGE>
POWER OF ATTORNEY
-----------------
* 1 KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Louis D. Paolino, Jr.
and Gregory M. Krzemien, his true and lawful attorney-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, 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 or 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 or his substitutes, may lawfully do or cause to be done by virtue
hereof.
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Louis D. Paolino, Jr. Chairman of the Board, June 4, 1997
- ------------------------- Chief Executive Officer,
Louis D. Paolino, Jr. President and Director
(Principal Executive
Officer)
/s/ Gregory M. Krzemien Chief Financial Officer June 4, 1997
- ------------------------- and Treasurer
Gregory M. Krzemien (Principal Financial and
Accounting Officer)
*2 /s/ George O. Moorehead Director June 4, 1997
- ----------------------------
George O. Moorehead
*3 /s/ Kenneth C. Leung Director June 4, 1997
- ----------------------------
Kenneth C. Leung
</TABLE>
- 36 -
