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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CLEAN HARBORS, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2997780
(State or other jurisdiction of (I.R.S. employer identification number)
incorporation or organization)
325 WOOD ROAD, BRAINTREE, MASSACHUSETTS 02184
(Address of principal executive offices) (Zip Code)
CLEAN HARBORS EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
C. MICHAEL MALM, ESQ.
DAVIS, MALM & D'AGOSTINE, P.C.
ONE BOSTON PLACE, BOSTON, MASSACHUSETTS 02108
(617) 367-2500
(Name and address of agent for service)
____________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share (1) price (1) fee (1)
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<S> <C> <C> <C> <C>
Common Stock,
$. 01 par value 1,000,000 $4.875 $4,875,000 $1,681.04
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(1) Computed under Rule 457(c) and (h) based upon the last reported sale price
of the registrant's Common Stock on The Nasdaq Stock Market on June 8, 1995.
Approximate date of proposed public offering: From time to time after the
effective date of this Registration Statement.
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PART I
This registration statement has been prepared in accordance with the
requirements of Form S-8 and relates to 1,000,000 shares of common stock, $. 01
par value per share ("Common Stock") of Clean Harbors, Inc. (the "Company").
Such number of shares represents the number of shares available for issuance
under the Company's Employee Stock Purchase Plan, as approved respectively by
the Company's Board of Directors and stockholders on March 3, 1995 and May 12,
1995. Documents containing the information specified in Part I will be sent or
given to employees as specified in Rule 428(b)(1).
PART II
Item 3. Incorporation of Documents By Reference
The following documents filed by the Company with the Commission are
incorporated in and made a part of this registration statement and the
Prospectus by reference as of their respective dates:
(1) the Company's Annual Report on Form 10-K for the Fiscal Year Ended December
31, 1994 (File No. 0-16379);
(2) the Company's Quarterly Report on Form 10-Q for the Quarterly Period Ended
March 31, 1995; and
(3) the description of the Company's Common Stock contained under the caption
"Description of Capital Stock" in the Company's Registration Statement on Form
S-1 under the Securities Act (No. 33-17565), as referred to in the Company's
Registration Statement on Form 8-A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), filed with the Commission on November 18, 1987.
In addition to the foregoing documents, all documents subsequently filed by the
Company with the Commission pursuant to Section 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 and to be
a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable
Item 5. Interest of Named Experts and Counsel
C. Michael Malm, a shareholder of Davis, Malm & D'Agostine, P.C., is the Clerk
of the Company and the holder of an option to purchase 11,112 shares of the
Company's Common Stock at $2.70 per share. Mr. Malm and other shareholders in
Davis, Malm & D'Agostine, P.C., beneficially owned an aggregate of 13,760
additional shares of Common Stock of the Company as of June 1, 1995. In
addition, two shareholders of that firm are trustees of a trust for the benefit
of the children of Alan S. McKim, the Company's principal stockholder, which
owns an additional 60,000 shares of Common Stock.
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Item 6. Indemnification of Directors and Officers
Section 67 of the Massachusetts Business Corporation Law, as amended, gives
Massachusetts corporations the power to indemnify each of their present and
former officers or directors under certain circumstances if such person acted in
good faith and in a manner which such person reasonably believed to be in or not
opposed to the best interest of the corporation.
Articles 5 and 6 of the Company's Restated Articles of Organization contain the
following provisions regarding the indemnification of directors and officers:
"FIVE: The Corporation shall, to the extent legally permissible, indemnify each
person (and his heirs, executors, administrators, or other legal
representatives) who is, or shall have been, a director or officer of the
Corporation or any person who is serving, or shall have served, at the request
of the Corporation as a director or officer of another corporation, against all
liabilities and expenses (including judgments, fines, penalties and attorneys'
fees and all amounts paid in compromise or settlement) reasonably incurred by
any such director, officer or person in connection with, or arising out of, any
action, suit or proceeding in which any such director, officer or person may be
a party defendant or with which he may be threatened or otherwise involved,
directly or indirectly, by reason of his being or having been a director or
officer of the Corporation or such other corporation, except in relation to
matters as to which any such director, officer or person shall be finally
adjudged, other than by consent, in such action, suit or proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interests of the corporation; provided, however, that indemnity shall not be
made with respect to such amounts paid in compromise or settlement, unless:
(a) such compromise or settlement shall have been approved as in the best
interest of the Corporation, after notice that it involves such indemnification
by:
(i) The Board of Directors by a majority of a quorum consisting of directors who
were not parties to such action, suit or proceedings, or by
(ii) The stockholders of the Corporation by a majority vote of a quorum
consisting of stockholders who were not parties to such action, suit or
proceeding, or
(b) in the absence of action by disinterested directors or stockholders as above
provided, there has been obtained at the request of a majority of the Board of
Directors then in office a written opinion of independent legal counsel to the
effect that the director or officer to be indemnified appears to have acted in
good faith in the reasonable belief that his action was in the best interest of
the Corporation.
Upon request therefor by any director, officer or person enumerated in the
preceding paragraph of this Article, the Corporation may from time to time, if
authorized by the Board of Directors, prior to final adjudication or compromise
or settlement of the matter or matters as to which indemnification is claimed,
advance to such director, officer or person all expenses incurred by him to date
of such request. Any advance made pursuant to this provision shall be made on
the condition that the director, officer or person receiving such advance shall
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repay to the Corporation any amounts so advanced if, upon the termination of the
matter or matters as to which such advances were made, such director, officer or
person shall not be entitled to indemnification under the preceding paragraph of
this Article.
The foregoing right to indemnification shall not be exclusive of any other
rights to which any such director, officer or person is entitled under any
agreement, vote of stockholders, statute, or as a matter of law, or otherwise.
The provisions of this Article are separable, and if any provision or portion
hereof shall for any reason be held inapplicable, illegal or ineffective, this
shall not prevent any other provision or portion hereof from applying, and shall
not affect any right of indemnification existing otherwise than under this
Article.
SIX: No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that such limitation on liability will not eliminate or limit the liability of a
director (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
Sections 61 or 62 of Chapter 156B of the Massachusetts General Laws, or (iv) for
any transaction from which the director derived an improper personal benefit.
If the Massachusetts Business Corporation Law is amended after the effective
date of these Articles of Organization, to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Massachusetts Business Corporation Law, as so amended."
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
The following exhibits are filed as a part of this Registration Statement:
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Item No. Description
- -------- -----------
<S> <C>
4 Description of the Company's Common Stock (contained in the Company's
Restated Articles of Organization filed as Exhibit 3.1 to its
Registration Statement (No. 33-17565) on Form S-1 and incorporated by
reference herein).
5 Opinion of Davis, Malm & D'Agostine, P.C. as to the legality of the
securities being registered (filed herewith).
23.1 Consent of Coopers & Lybrand L.L.P. (filed herewith).
23.2 Consent of Davis, Malm & D'Agostine, P.C. is contained in their
opinion filed as Exhibit 5.
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24 Power of Attorney granting James A. Pitts and C. Michael Malm the
power to sign and file this Registration Statement and any amendments
thereto (filed herewith).
27 Financial Data Schedule (filed as Exhibit 27 to the Company's
Quarterly Report on Form 10-Q for the Quarterly Period Ended March
31, 1995 and incorporated by reference herein).
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Item 9. 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) 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 Section 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 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 post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(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 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
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at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the Town of Braintree, Commonwealth of Massachusetts, on the 12th
day of June, 1995.
CLEAN HARBORS, INC.
By /s/ James A. Pitts
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James A. Pitts, Executive Vice President
of Finance and Administration
and Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
* Chairman of the Board of June 12, 1995
- ------------------------ Directors, President and
Alan S. McKim Chief Executive Officer
/s/ James A. Pitts Executive Vice President June 12, 1995
- ------------------------ of Finance and Administration
James A. Pitts and Chief Financial Officer
(principal financial and
accounting officer)
* Director June 12, 1995
- ------------------------
Christy W. Bell
* Director June 12, 1995
- ------------------------
John F. Kaslow
* Director June 12, 1995
- ------------------------
Daniel J. McCarthy
* Director June 12, 1995
- ------------------------
John T. Preston
* Director June 12, 1995
- ------------------------
Lorne R. Waxlax
*By: /s/ James A. Pitts
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James A. Pitts
Attorney-In-Fact
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EXHIBIT 5
OPINION AS TO LEGALITY OF THE SECURITIES BEING REGISTERED
June 12,1995
Clean Harbors, Inc.
325 Wood Road
Braintree,Massachusetts 02184
Gentlemen:
You are seeking to register 1,000,000 shares of Common Stock, $.01 par
value per share, of Clean Harbors, Inc. (the "Company") under the
Securities Act of 1933, as amended, for issuance pursuant to the Clean
Harbors Employee Stock Purchase Plan (the "ESPP"). You have requested
that we furnish to you an opinion as to the legality of these
securities, which opinion is to be filed as Exhibit 5 to your
Registration Statement on Form S-8 with respect to such securities (the
"Registration Statement").
We have examined the Articles of Organization and By-Laws of the
Company, as amended, copies of votes of the Board of Directors of the
Company, the Registration Statement as proposed to be filed with the
Securities and Exchange Commission with respect to the offering of such
securities, and such other documents as we deemed pertinent. We have
also made such examination of law as we have felt necessary in order to
render this opinion.
We are of the opinion and advise you that, upon their registration
under the Registration Statement and their issuance in accordance with
the ESPP, the shares of Common Stock being registered will be legally
issued, fully paid and nonassessable.
This opinion does not pass on the application of the "Blue Sky" or
securities law of the various states.
We hereby consent that this opinion may be filed as an exhibit to the
Registration Statement. We further consent to the use of our name and
to all references to us included in or made a part of the Registration
Statement.
Yours very truly,
DAVIS, MALM & D'AGOSTINE, P.C.
By /s/ C. Michael Malm
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C. Michael Malm
Managing Director
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Clean Harbors, Inc. on Form S-8 of our report dated January
31, 1995 on our audits of the consolidated financial statements and
financial statement schedules of Clean Harbors, Inc. as of December 31,
1994 and 1993, and for the years ended December 31, 1994, 1993 and 1992,
which report is included in the Annual Report on Form 10-K for the Fiscal
Year Ended December 31, 1994, and to all references to our firm included
in the Registration Statement.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
June 6, 1995
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EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James A. Pitts and C. Michael
Malm, jointly and severally, his attorneys-in-fact, each with the power
of substitution and resubstitution, for him in any and all capacities,
to sign the Registration Statement on Form S-8, and any amendments
thereto, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to
be done by virtue hereof.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Alan S. McKim
_______________________ Chairman of the June 9, 1995
Alan S. McKim Board of Directors
President, and Chief
Executive Officer
/s/ Christy W. Bell
_______________________ Director June 9, 1995
Christy W. Bell
/s/ John F. Kaslow
_______________________ Director June 2, 1995
John F. Kaslow
/s/ Daniel J. McCarthy
_______________________ Director June 2, 1995
Daniel J. McCarthy
/s/ John T. Preston
_______________________ Director June 8, 1995
John T. Preston
/s/ Lorne R. Waxlax
_______________________ Director June 2, 1995
Lorne R. Waxlax
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