As filed with the Securities and Exchange Commission on May 8, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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HANDEX ENVIRONMENTAL RECOVERY, INC.
(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
22-2941704
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(I.R.S. Employer Identification No.)
500 Campus Drive, Morganville, New Jersey 07751 (908) 536-8500
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Copy to:
Curtis Lee Smith, Jr. Scott R. Wilson, Esq.
Handex Environmental Recovery, Inc. Calfee, Halter & Griswold
500 Campus Drive 800 Superior Avenue, Suite 1800
Morganville, New Jersey 07751 Cleveland, Ohio 44114
(908) 536-8500 (216) 622-8200
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement and after
compliance with applicable state and federal laws.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ________
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
each maximum maximum
class of Amount offering aggregate Amount of
securities to be price per offering registration
to be registered share (1) price (1) registered fee
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Common
Stock, 65,000 $5.75 $373,750.00 $129.00
$.01 par shares
value
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
Subject to Completion, Dated May 8, 1995
PROSPECTUS
HANDEX ENVIRONMENTAL RECOVERY, INC.
65,000 Shares of Common Stock
($.01 par value)
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This Prospectus relates to the offer and sale of 65,000 shares of Common
Stock, $.01 par value (the "Common Stock"), of Handex Environmental Recovery,
Inc., a Delaware corporation (the "Company"). All of the Common Shares being
registered may be offered and sold from time to time by certain shareholders of
the Company, upon the exercise of certain outstanding warrants to purchase
shares of Common Stock. See "Selling Shareholders." The Company will not
receive any proceeds from the sale of the Common Stock.
The Company's Common Stock is traded in the NASDAQ National Market System
under the symbol "HAND." On May 3, 1995, the last reported sale price for the
Common Stock was $5-1/2 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus (including the
material incorporated herein by reference) and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person deemed to be an underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the shares covered by this Prospectus by anyone in any state in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so to anyone to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor
any sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof.
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The date of this Prospectus is May __, 1995
THE COMPANY
Handex Environmental Recovery, Inc., a Delaware corporation, has its
principal executive offices at 500 Campus Drive, Morganville, New Jersey 07751
and its telephone number is (908) 536-8500. As used in this Prospectus, the
"Company" shall refer to Handex Environmental Recovery, Inc. and its
consolidated subsidiaries, unless the context indicates otherwise.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission") which may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy statements and other information
filed by the Company are also available for inspection and copying at the
regional offices of the Commission located at: 500 West Madison Street, Suite
1400, Chicago, Illinois 60661; and at Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies of such material may also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, Room 1024, N.W.,
Washington, D.C. 20549 upon payment of prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus (not including exhibits to the information that is incorporated
by reference unless such exhibits are specifically incorporated by reference
into the information that the Prospectus incorporates). Such request should be
directed to John T. St. James, Vice President, Treasurer and Chief Financial
Officer, Handex Environmental Recovery, Inc., 500 Campus Drive, Morganville, New
Jersey 07751 telephone (908) 536-8500.
The Company hereby incorporates the following documents in this Prospectus
by reference: (a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994; (b) the Company's definitive Proxy Statement filed with
the Commission pursuant to Section 14 of the Exchange Act in connection with the
Annual Meeting of Shareholders to be held on May 9, 1995; and (c) the Company's
Current Report on Form 8-K dated April 13, 1995. The Exchange Act file number
under which each such report has been filed is 0-17840.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of this offering shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
RECENT DEVELOPMENTS
During the first quarter of fiscal 1995, several customers deferred work on
environmental remediation projects, which adversely affected the financial
results for the Company's first fiscal quarter and, based on management's
estimates, will continue to affect the remainder of the second quarter. In
addition, in late March the State of Florida enacted a law which revises that
State's reimbursement program for environmental remediation projects, resulting
in fewer sites qualifying for reimbursement. Management of the Company believes
that while deferral of the environmental remediation projects is likely to
adversely affect the Company's results for the first and second quarters, the
changes in Florida's reimbursement program are likely to have a greater impact
on the Company's results of operations for the fiscal year. For the fiscal
quarter ended April 1, 1995, the Company had net operating revenues of
$17,001,000, gross profit of $6,221,000, income before income taxes of $462,000
and net income of $274,000.
SELLING SHAREHOLDERS
The Common Shares covered by this Prospectus are being offered and sold by
the shareholders of the Company listed below, upon the exercise of certain
outstanding warrants to purchase an aggregate of up to 65,000 shares of Common
Stock (the "Warrants") originally issued to The Nassau Group, Inc. ("Nassau").
The Company issued Warrants to purchase 25,000 shares of Common Stock at an
exercise price per share of $6.75 to Nassau on December 17, 1993, in connection
with its engagement to serve as the Company's financial advisor. On August 16,
1994 the Company issued Warrants to purchase up to 40,000 shares of Common Stock
at an exercise price of $3.525 per share to Nassau as partial payment for
certain financial advisory services provided by it in connection with the
Company's acquisition of certain assets of New Horizons Computer Learning
Center, Inc. and the stock of New Horizons Franchising, Inc. (collectively, "New
Horizons"). On February 27, 1995, the Warrants to purchase 25,000 shares of
Common Stock originally issued on December 17, 1993 were transferred by Nassau
to Mr. James Lavelle ("Lavelle"), an affiliate of Nassau (collectively, Nassau
and Lavelle are hereinafter referred to as the "Selling Shareholders"). The
65,000 shares of Common Stock (the "Warrant Shares") which may be acquired by
the Selling Shareholders upon exercise of the Warrants represent all of the
shares presently owned by them.
The following table shows the number of shares of Common Stock owned
by the Selling Shareholders prior to this offering and the number of shares of
Common Stock being registered hereby:
Shares owned Number of
prior Shares
Name to offering registered
The Nassau Group, Inc. (1) 40,000 40,000
James Lavelle (1) 25,000 25,000
Total 65,000 65,000
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(1) Represents shares which may be acquired upon exercise of the Warrants,
which are immediately exercisable as of the date hereof.
As of the date of this Prospectus, the Company is unaware of any plans or
intentions of the Selling Shareholders with respect to the number of shares of
Common Stock that either of them desires to sell or when the Selling
Shareholders would desire to sell their Common Stock, except that, depending on
market conditions, the Selling Shareholders may sell an as yet undetermined
number of shares of Common Stock for the purposes of investment diversification.
MANNER OF OFFERING
Sales may be made in the over-the-counter market or otherwise at prices and
at terms then prevailing or at prices related to the then current market price,
or in negotiated transactions. The shares may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; and (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from
Selling Shareholders in amounts to be negotiated immediately prior to sale. Such
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), in connection with
such sales. In addition, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus.
The Company has advised the Selling Shareholders of their obligations under
the Exchange Act to avoid market manipulation of the Common Stock (including,
without limitation, the obligation of each Selling Shareholder not to purchase
or solicit purchases by others of any shares of Common Stock during the two
business days preceding the commencement of any offers or sales of shares of
Common Stock by such Selling Shareholder) until the offering pursuant to this
Prospectus by the Selling Shareholders has been completed.
Under the terms of the Warrants, the Company has agreed to indemnify the
Selling Shareholders against certain liabilities, including liabilities under
the Securities Act of 1933.
The Company has also advised the Selling Shareholders of their obligations
under the Securities Act to deliver copies of this Prospectus to any purchaser
of the Common Stock.
DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The Company's Amended Certificate of Incorporation (the "Certificate"),
authorizes 15,000,000 shares of Common Stock, $.01 par value per share, of which
6,865,212 shares are issued outstanding and held of record by approximately 297
shareholders as of March 1, 1995. Holders of Common Stock are entitled to
receive dividends as declared from time to time by the Board of Directors out of
funds legally available therefor, after payment of dividends required to be paid
on outstanding Preferred Stock, if any. The Company has indicated, however,
that it does not intend to declare cash dividends in the foreseeable future. In
the event of a liquidation, dissolution or winding up of the Company, the
holders of Common Stock are entitled to share ratably in all assets remaining
after payment of liabilities subject to prior distribution rights of any
Preferred Stock then outstanding. The Common Stock has no preemptive or
conversion rights and is not subject to further calls or assessments by the
Company. There are no redemption or sinking fund provisions applicable to the
Common Stock. All currently outstanding Common Stock of the Company is, and the
Common Stock being sold by the Selling Shareholders in the offering will be,
duly authorized, validly issued, fully-paid and nonassessable.
The holders of Common Stock are entitled to one vote per share on all
matters to be voted upon by the stockholders, and do not have the right to vote
cumulatively in the election of Directors. The Board of Directors presently
consists of eight members divided into three classes. The Directors of the
class elected at each annual meeting of stockholders hold office for a term of
three years.
In general, the Certificate can be amended by the affirmative vote of a
majority of the Company's then outstanding shares having voting power thereon.
However, certain actions require the approval of at least 66_% of the then
outstanding shares of Common Stock and at least 51% of the shares of Common
Stock not held by a Related Person (as hereinafter defined) or an affiliate or
associate of a Related Person. Such actions include the provisions which govern
election of Directors, approval of Business Combinations (as hereinafter
defined), Director liability, special meetings of or consent actions by
stockholders and amendment of the Certificate or By-laws.
WARRANTS
Warrants to purchase an aggregate of 25,000 shares of Common Stock at an
exercise price of $6.75 per share were issued to Nassau on December 17, 1993 in
connection with its engagement to serve as the Company's financial advisor. On
August 16, 1994, Warrants to purchase an aggregate of 40,000 shares of Common
Stock at an exercise price of $3.525 per share were issued to Nassau in partial
payment for financial advisory services rendered to the Company in connection
with its acquisition of New Horizons. The terms of the Warrants are identical in
all material respects, except that the Warrants issued to Nassau on December 17,
1993 expire on December 17, 1998, while the Warrants issued on August 16, 1994
expire on August 16, 1999.
The Warrants may be exercised in whole at any time or in part from time to
time prior to their respective expiration dates. The aggregate exercise price
for the number of Warrant Shares may be tendered to the Company in cash, by
certified check or bank draft, by conversion of any indebtedness outstanding at
such time of the Company to the Holder, if the Common Stock is then publicly
traded, in Warrants (valued for this purpose at their fair market value), or by
any combination thereof. Any request for exercise must be accompanied by such
investment representations as are reasonably requested by the Company. No
fractional shares or scrip representing fractional shares may be issued upon the
exercise of the Warrants. In lieu of issuing a fraction of a share, the number
of Warrant Shares to be received upon any exercise shall be rounded up to the
next whole share. The Warrants are assignable with the prior written consent of
the Company, and may also be assigned by Nassau, in whole or in part, to any of
its affiliates without the consent of the Company.
The relevant exercise price in effect at any time and the number and kind
of securities purchasable upon the exercise of the Warrants are subject to
appropriate adjustment in the event of the declaration of any stock dividend or
distribution on the Company's outstanding shares of Common Stock, or any
subdivision, combination or reclassification of the Company's outstanding shares
of Common Stock into a lesser or greater number of shares. The Company's
obligation to make such adjustments will not apply to (i) the issue, sale,
distribution or grant of any shares of Common Stock, any rights, warrants or
options to subscribe for or purchase shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock to officers,
directors or employees of the Company pursuant to a compensation plan that has
been approved by the stockholders of the Company or (ii) the issuance of shares
of Common Stock to officers, directors or employees of the Company upon any
exercise of rights, warrants or options, or any conversion or exchange of
convertible or exchangeable securities, described in clause (i) above. No
adjustment to the relevant exercise price will be required unless such
adjustment would require an increase or decrease of at least five cents ($.05)
in such price; provided, however, that any adjustments which are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. In case of any consolidation or merger to which the Company is a
party, other than a consolidation or merger in which the Company is a continuing
corporation and which does not result in any reclassification or conversion of,
or change in, the outstanding shares of Common Stock, or any sale or conveyance
of the property of the Company as an entirety or substantially as an entirety
(any such event being called a "Capital Reorganization") the Company is required
to cause effective provisions to be made so that the holders of the Warrants
will have the right thereafter by exercising the Warrants at any time prior to
their expiration, to receive (in lieu of the number of shares of Common Stock
theretofore deliverable) cash in an amount per share of Common Stock equal to
the excess, if any, of (x) the fair market value per share of Common Stock of
the consideration received in the Capital Reorganization over (y) the relevant
exercise price.
Under the terms of the Warrants, upon a written request to register all,
but not less than all, of the Warrant Shares issued or issuable upon exercise of
the Warrants pursuant to the Securities Act from the holders thereof, the
Company is required to use its best efforts to register all such Warrant Shares
for resale by the holder thereof on Form S-3 or any other registration form then
available. The Company is obligated to use all reasonable efforts to cause such
registration statement to become effective as soon as practicable thereafter and
to remain effective for such period as may be reasonably necessary to effect the
sale of the Warrant Shares, but in any event no longer than three years from the
date of issuance of the Warrant Shares. The Company is required to bear the
first Ten Thousand Dollars ($10,000.00) of registration expenses and one-half
(1/2) of such expenses in excess of such amount, but in no event more than
Twenty-Five Thousand Dollars ($25,000.00) in the aggregate.
PREFERRED STOCK
The Certificate authorizes 2,000,000 shares of Preferred Stock, without par
value, none of which is outstanding. The Board of Directors has the authority
to issue Preferred Stock in one or more series and to fix the number of shares
of such series, and the designations, relative rights, preferences and
limitations of such series to the full extent now or hereafter permitted by
Delaware law, without any further vote or action by the stockholders. Such
shares may be issued with voting and conversion rights which could adversely
affect the voting power of the holders of Common Stock and may have the effect
of making an acquisition of the Company more difficult or of deterring potential
tender offers. If any shares of Preferred Stock were issued with voting rights
that would have the effect of nullifying, restricting or disparately reducing
the per share voting rights of existing stockholders of the Company then the
Company's Common Stock could be prohibited from being reported on any exchange
or any automated inter-dealer quotation system, such as the NASDAQ System. Such
prohibition could adversely affect the liquidity of a stockholder's investment.
The Company has no present intention to issue Preferred Stock.
BUSINESS COMBINATIONS
Under the Certificate, the affirmative vote of not less than 66-2/3% of the
outstanding shares of Common Stock, in addition to the affirmative vote which
may be required of any series of Preferred Stock which may then be outstanding,
and the affirmative vote of 51% of shares held or beneficially owned other than
by a Related Person are generally required for the approval or authorization of
any Business Combination of the Company with any Related Person. These
provisions of the Certificate do not apply to Business Combinations with Related
Persons which have been approved by a majority of the Continuing Directors (as
hereinafter defined) of the Company or which satisfy certain provisions of the
Certificate relating to the consideration to be paid to the holders of Common
Stock by the Related Person.
The term "Business Combination" means (i) any merger or consolidation of
the Company with or into a Related Person, (ii) any sale, lease, exchange,
transfer or other disposition, including, without limitation, a mortgage or any
other security device, of all or any Substantial Part (as hereinafter defined)
of the assets of the Company (including, without limitation, any voting
securities of a subsidiary) or of a subsidiary, to a Related Person, (iii) any
merger or consolidation of a Related Person with or into the Company or a
subsidiary of the Company, (iv) any sale, lease, exchange, transfer or other
disposition of all or any Substantial Part of the assets of a Related Person to
the Company or a subsidiary of the Company, (v) the reclassification of the
shares of stock of the Company generally possessing voting rights in elections
of Directors, the purchase by the Company of such shares, or the issuance by the
Company of shares of any securities convertible thereto or exchangeable therefor
which in any such case has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Company which are directly or indirectly owned by
any Related Person, or (vi) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of Business
Combination. The term "Continuing Director" means a Director who was a member
of the Board of Directors of the Company immediately prior to the time that the
Related Person involved in a Business Combination became a Related Person. The
term "Related Person" means any individual, corporation, partnership or other
person or entity which, together with its "affiliates" and "associates"
"beneficially" owns (as those terms are defined in the Exchange Act and the
rules promulgated thereunder), in the aggregate, 15% or more of the outstanding
shares of Common Stock of the Company, and any affiliate or associate of any
such individual, corporation, partnership or other person or entity; provided
that shares held by or over which such entity has power to vote or otherwise
control as a trustee, plan administrator, officer of the Company or in a similar
capacity under an employee benefit plan of the Company or an employee benefit
plan of an affiliate of the Company will not be deemed to be beneficially owned
for purposes of this definition. The term "Substantial Part" means more than
10% of the total consolidated assets of the Company as at the end of its most
recent fiscal year ending prior to the time the determination is made.
DIRECTOR LIABILITY
The Certificate contains a provision which eliminates under certain
circumstances the personal liability of Directors to the Company or its
stockholders, in their capacity as Directors of the Company, and the Company's
By-laws contain provisions indemnifying Directors and officers to the fullest
extent permitted by law and providing for the advancement of expenses incurred
in connection with an action upon the receipt of an appropriate undertaking to
repay said amount if it is determined that the individual in question is not
entitled to indemnification. The Company has also entered into indemnity
agreements pursuant to which it has agreed, among other things, to indemnify its
Directors for settlements in derivative actions.
DELAWARE TAKEOVER STATUTE
Section 203 of the Delaware General Corporation Law (the "Delaware Takeover
Statute") applies to Delaware corporations with a class of voting stock listed
on a national securities exchange, authorized for quotation on an inter-dealer
quotation system, or held of record by 2,000 or more persons, and restricts
transactions which may be entered into by such a corporation and certain of its
stockholders. The Delaware Takeover Statute provides, in essence, that a
stockholder acquiring more than 15% of the outstanding voting shares of a
corporation subject to the Statute (an "Interested Stockholder") may not, except
with certain Board of Directors' and/or stockholder approvals, engage in certain
"Business Combinations" with the corporation for a period of three years
subsequent to the date on which the stockholder became an Interested
Stockholder.
The Delaware Takeover Statute defines the term "Business Combination" to
encompass a wide variety of transactions with or caused by an Interested
Stockholder in which the Interested Stockholder receives or could receive a
benefit on other than a pro rata basis with other stockholders, including
mergers, certain asset sales, certain issuances of additional shares to the
Interested Stockholder, transactions with the corporation which increase the
proportionate ownership interest of the Interested Stockholder or transactions
in which the Interested Stockholder receives certain other benefits.
GENERAL
It is possible that the division of the Board of Directors of the Company
into classes provided for in the Certificate and the increased voting
requirements with respect to a Business Combination provided for in the
Certificate, the ability of the Board of Directors to issue Preferred Stock
and/or the provisions of the Delaware Takeover Statute may discourage other
companies from making a tender offer for, or acquisitions of substantial amounts
of, the Company's Common Stock. This could have an incidental effect of
inhibiting changes in management and may also prevent temporary fluctuations in
the market price of the Company's Common Stock which often result from actual or
rumored takeover attempts. In addition, the provisions of the Certificate
eliminating certain liabilities of Directors, the indemnification provisions of
the By-laws and the indemnity agreements may have the effect of reducing the
likelihood of derivative litigation against Directors and to deter stockholders
from bringing a lawsuit against Directors for breach of their duty of care, even
though such an action, if successful, might otherwise have benefited the Company
and the stockholders.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is Key Corp
Shareholder Services, Inc., Cleveland, Ohio.
VALIDITY OF SHARES
The validity of the Common Shares offered hereby will be passed upon by
Calfee, Halter & Griswold, 800 Superior Avenue, Suite 1800, Cleveland, Ohio
44114-2688. Scott R. Wilson, Esq., a partner of Calfee, Halter & Griswold, is a
Director of the Company and as of March 31, 1995 beneficially owned an aggregate
of 6,000 shares of the Company's Common Stock.
EXPERTS
The consolidated financial statements of the Company included in its Annual
Report on Form 10-K for the fiscal year ended December 31, 1994 have been
examined by KPMG Peat Marwick LLP, independent certified public accountants, as
set forth in their report included therein and incorporated herein by reference.
The consolidated financial statements referred to above are incorporated herein
by reference in reliance upon such reports and upon the authority of such firm
as experts in accounting and auditing.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses payable by the
Registrant in connection with the sale and distribution of the Common Shares
registered hereby:
SEC Registration Fee $ 129.00
Fees and Expenses of Counsel 5,000.00
Miscellaneous 371.00
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Total $ 5,500.00
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Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law sets forth the
conditions and limitations governing the indemnification of officers, directors
and other persons. Section 145 provides that a corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or contemplated 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 was serving at the
request of the corporation in a similar capacity with another corporation or
other entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection therewith if he acted in good
faith and in a manner that he reasonably believed to be in the best interests of
the corporation. With respect to a suit by or in the right of the corporation,
indemnity may be provided to the foregoing persons under Section 145 on a basis
similar to that set forth above, except that no indemnity may be provided in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation unless and to the extent that the Delaware Court
of Chancery or the court in which such action, suit or proceeding was brought
determines that despite the adjudication of liability but in view of all the
circumstances of the case such person is entitled to indemnity for such expenses
as the court deems proper. Moreover, Section 145 provides for mandatory
indemnification of a director, officer, employee or agent of the corporation to
the extent that such person has been successful in defense of any such action,
suit or proceeding and provides that a corporation may pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 145 establishes provisions
for determining that a given person is entitled to indemnification, and also
provides that the indemnification provided by or granted under Section 145 is
not exclusive of any rights to indemnity or advancement of expenses to which
such person may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
Article V of the Registrant's By-laws provides that the Registrant shall
indemnify, to the fullest extent permitted by Delaware law, any Director or
officer who was or is a party or is threatened to be made a party to any action,
suit or proceeding by reason of the fact that he or she, or a person of he or
she is the legal representative, is or was a Director or officer of the
Registrant, or is or was serving at the request of the Registrant as a Director,
officer, partner, trustee, employee or agent of another entity, against all
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties or amounts paid in settlement) reasonably
incurred by such person in connection therewith. In addition, provisions of
Article V of the Registrant's By-laws provide for the advancement of expenses,
including attorneys' fees, incurred by a Director or officer of the Registrant
in defending any proceeding for which indemnification is provided under Article
V upon receipt of an undertaking to repay such amounts if it is ultimately
determined that he or she is not entitled to be indemnified by the Registrant as
authorized in Article V. In addition, Article V permits the Registrant to
maintain insurance, at its expense, to protect itself and any of its Directors
or officers or individuals serving at the request of the registrant as a
director, officer, partner, trustee, employee or agent of another entity,
against any expense, liability or loss, whether or not the Registrant would have
the power to indemnify such person against such expense, liability or loss under
the Delaware General Corporation Law.
Section 102 (b) of the Delaware General Corporation Law permits
corporations to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of the
director's duty of care. Accordingly, Article VII of the Registrant's Amended
Certificate of Incorporation provides that a Director of the Registrant shall
not be personally liable to the Registrant 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 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. Article VII of the Registrant's
Amended Certificate of Incorporation further provides that any repeal, amendment
or other modification of Article VII will not affect the liability or alleged
liability of any Director of the corporation then existing with respect to any
state of facts then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
In addition to the foregoing, the Registrant has entered into indemnity
agreements with its executive officers and Directors. The indemnity agreements
provide that such persons will be indemnified to the fullest extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, amounts
paid or incurred by them for settlement in any action or proceeding on account
of their service as a Director or officer of the Registrant or of any subsidiary
of the Registrant or of any other entity in which they are serving at the
request of the Registrant.
The agreements bind the registrant to provide indemnification to Directors
and officers whether or not the Registrant maintains Directors and officers
liability insurance coverage and regardless of any future changes in the By-
laws. The protection to be afforded Directors and officers by the agreements is
broader than that provided under the indemnification provisions contained in the
By-laws, in that the agreements expressly provide for the advancement of
expenses and for indemnification with respect to amounts paid in settlements of
derivative actions.
Reference is made to the Warrants filed as Exhibits 4.7 and 4.8 hereto with
respect to the indemnification provisions contained therein.
Item 16. Exhibits.
See the Exhibit Index at page E-1 of this Registration Statement.
Item 17. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the 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 event 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;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form 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 Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) 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.
(c) 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) The undersigned Registrant hereby undertakes that for the purpose
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for 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-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE TOWNSHIP OF MARLBORO, STATE OF NEW JERSEY, ON THE 8TH DAY OF
MAY, 1995.
HANDEX ENVIRONMENTAL RECOVERY, INC.
------------------------------------
By /s/ Curtis Lee Smith, Jr.
Curtis Lee Smith, Jr., Chairman of
the Board of Directors and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, constitutes and appoints Curtis Lee Smith, Jr., Stuart O. Smith, Thomas
J. Bresnan, John T. St. James or Scott R. Wilson, or any one of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
for him or her and his or her name, place and stead, in any and all capacities,
to sign any or all amendments or 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 such attorneys-in-fact and agents, or any one of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any one of them, or their or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 8TH DAY OF MAY, 1995.
SIGNATURE TITLE
/s/ Curtis Lee Smith, Jr.
- ------------------------- Chairman of the Board of
Curtis Lee Smith, Jr. Directors and Chief Executive
Officer (principal executive
officer)
/s/ John T. St. James
- ------------------------ Vice President, Treasurer and Chief
John T. St. James Financial Officer (principal financial and
accounting officer)
/s/ Stuart O. Smith
- ------------------------- Director
Stuart O. Smith
SIGNATURE TITLE
/s/ Thomas J. Bresnan
- -------------------------- Director
Thomas J. Bresnan
/s/ Gregory J. Reuter
- -------------------------- Director
Gregory J. Reuter
/s/ David A. Goldfinger
- -------------------------- Director
David A. Goldfinger
/s/ William H. Heller
- ------------------------- Director
William H. Heller
/s/ Richard L. Osborne
- ------------------------- Director
Richard L. Osborne
/s/ Scott R. Wilson
- ------------------------ Director
Scott R. Wilson
HANDEX ENVIRONMENTAL RECOVERY, INC.
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
4.1* Certificate of Incorporation of the
Registrant
4.2* By-laws of the Registrant
4.3* Specimen Certificate for shares of Common
Stock, $.01 par value, of the Registrant
4.4** Unsecured Revolving Loan Agreement
4.5** Working Capital Line of Credit Note
4.6** First Amendment to Unsecured Revolving
Loan Agreement
4.7*** Warrant dated December 17, 1993 issued by
the Registrant to The Nassau Group, Inc.
4.8*** Warrant dated August 16, 1994 issued by
the Registrant to The Nassau Group, Inc.
5.1 Opinion of Calfee, Halter & Griswold with
respect to the validity of the shares of
Common Stock
23.1 Consent of KPMG Peat Marwick LLP with
respect to the financial statements of
the Registrant (included at page II-6
hereof)
23.2 Consent of Calfee, Halter & Griswold
(included in Exhibit 5.1)
24.1 Power of attorney (included at page II-8
hereof)
24.2 Certified resolution (included at page II-
9 hereof)
99.1**** Press Release of the Registrant dated
April 13, 1995
_________________
* Incorporated herein by reference to the corresponding exhibit to the
Registrant's registration statement on Form S-1 (Reg. No. 33-28798)
** Incorporated herein by reference to the corresponding exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1992
*** Incorporated herein by reference to the corresponding exhibit to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1994
**** Incorporated herein by reference to the corresponding exhibit to the
Registrant's Current Report on Form 8-K dated April 13, 1995
file: d:\w4w\ar\forms3\050895.doc
HANDEX ENVIRONMENTAL RECOVERY, INC.
500 CAMPUS DRIVE
P. O. BOX 451
MORGANVILLE, NEW JERSEY 07751
(908) 536-8500
May 8, 1995
"VIA EDGAR"
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: HANDEX ENVIRONMENTAL RECOVERY, INC.
REGISTRATION STATEMENT ON FORM S-3
Dear Sir/Madam:
On behalf of Handex Environmental Recovery, Inc. (the "Company"), I am
herewith filing with you the following materials for the purpose of registering
under the Securities Act of 1933, an aggregate of 65,000 Shares of Common Stock,
$.01 par value, of the Company:
1. One Copy of the Form S-3 Registration Statement (complete with
Exhibits); and
2. A request from the Company to accelerate effectiveness of the
Registration Statement.
The Registration Statement includes a Consent of Independent Auditors.
The filling fee of $129 was paid via wire transfer from the Company's
account at Mellon Bank in Pittsburgh.
If the Staff decides not to review the Registration Statement, the Company
desires that effectiveness be declared as soon as possible. To that end, we
have enclosed a request for acceleration.
If you have any questions or comments with respect to the foregoing, please
call the undersigned at (908) 536-8500 extension 300 or David A. Basinski, Jr.
at (216) 622-8380, our legal counsel in this matter.
Very truly yours,
/s/ Gary T. Gann
----------------------
GTG/gg GARY T. GANN
Enclosures General Counsel
sec.ltr
HANDEX ENVIRONMENTAL RECOVERY, INC.
500 CAMPUS DRIVE
P. O. BOX 451
MORGANVILLE, NEW JERSEY 07751
(908) 536-8500
May 8, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: HANDEX ENVIRONMENTAL RECOVERY, INC.
FORM S-3 REGISTRATION STATEMENT
65,000 SHARES OF COMMON STOCK
Ladies and Gentlemen:
Handex Environmental Recovery, Inc. hereby requests that the effective date
of the above-referenced Registration Statement be accelerated to 9:30 A.M.,
Wednesday, May 11, 1995, or as soon thereafter as is practicable.
Very truly yours,
HANDEX ENVIRONMENTAL RECOVERY, INC.
JSJ/gg
BY: /s/ John T. St. James
--------------------------------
John T. St. James
Vice President, Treasurer
and Chief Financial Officer
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Handex Environmental Recovery, Inc.
We consent to the use of our report dated February 17, 1995 on the
consolidated financial statements of Handex Environmental Recovery, Inc., and
subsidiaries as of December 31, 1994 and January 1, 1994 and for each of the
years in the three-year periods then ended, incorporated by reference herein,
and to the reference to our firm under the heading "Experts" in the Prospectus.
KPMG PEAT MARWICK LLP
Cleveland, Ohio
May 4, 1995
EXHIBIT 23.2
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their
opinion filed as Exhibit 5.1 to this Registration Statement.
EXHIBIT 24.1
HANDEX ENVIRONMENTAL RECOVERY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Handex Environmental Recovery, Inc.
hereby constitutes and appoints Curtis Lee Smith, Jr., Stuart O. Smith, Thomas
J. Bresnan, John T. St. James and Scott R. Wilson, or any one or more of them,
its attorneys-in-fact and agents, each with full power of substitution and
resubstitution for it in any and all capacities, to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each of such attorneys-in-
fact and agents full power and authority to do and perform each and every act
and thing requisite and necessary in connection with such matters and hereby
ratifying and confirming all that each of such attorneys-in-fact and agents or
his substitute or substitutes may do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney has been signed at Cleveland,
Ohio this 5th day of May, 1995.
HANDEX ENVIRONMENTAL RECOVERY, INC.
By: /s/ Curtis Lee Smith, Jr.
Curtis Lee Smith, Jr. Chairman and
Chief Executive Officer
EXHIBIT 24.2
HANDEX ENVIRONMENTAL RECOVERY, INC.
CERTIFIED RESOLUTION
I, Scott R. Wilson, Assistant Secretary of Handex Environmental Recovery,
Inc., a Delaware corporation (the "Company"), do hereby certify that the
following is a true copy of a resolution adopted by the Board of Directors on
March 24, 1995, and that the same has not been changed and remains in full force
and effect.
RESOLVED, that each of Curtis Lee Smith, Jr., Stuart O. Smith, Thomas J.
Bresnan, John T. St. James and Scott R. Wilson is hereby appointed as attorney
of the Company with full power of substitution and resubstitution for and in the
name, place and stead of the Company to sign, attest and file a Registration
Statement on Form S-3, or any other appropriate form that may be used from time
to time, with respect to the issue and sale of the Securities, and any and all
amendments and exhibits to such Registration Statement and any and all
applications or other documents to be filed with the Commission and any and all
applicable applications or other documents in connection with the inclusion in
any automated interdealer quotation system of the Securities covered by such
Registration Statement or any and all applications or other documents to be
filed with any governmental or private agency or official relative to the
issuance of said Securities, with full power and authority to do and perform any
and all acts and things whatsoever requisite and necessary to be done in the
premises, hereby ratifying and approving the acts of such attorneys or any such
substitute or substitutes and, without implied limitation, including in the
above the authority to do the foregoing things on behalf of the Company in the
name of the person so acting or on behalf and in the name of any duly authorized
officer of the Company; and that each of the Chairman, President, Treasurer,
Secretary or any Assistant Secretary of the Company is hereby authorized, for
and on behalf of the Company, to execute a Power of Attorney evidencing the
foregoing appointment.
/s/ Scott R. Wilson
------------------------------------
Scott R. Wilson, Assistant Secretary
Dated: May 4, 1995
Exhibit 5.1
Calfee, Halter & Griswold
800 Superior Avenue
Suite 1800
Cleveland, Ohio 44114
(216) 622-8200
May 4, 1995
Handex Environmental Recovery, Inc.
500 Campus Drive
Morganville, New Jersey 07751
Gentlemen:
In connection with the filing by Handex Environmental Recovery, Inc.,
a Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the provisions of the Securities Act of 1933, as amended, of a
Registration Statement on Form S-3 with respect to 65,000 shares of Common
Stock, $.01 par value, of the Company (the "Stock"), to be sold by the selling
stockholder named in the Registration Statement (the "Selling Stockholder"), we
have examined the following: (i) the Amended Certificate of Incorporation and
Amended By-Laws of the Company, as currently in effect; (ii) the form of
Registration Statement on Form S-3 (including Exhibits thereto) filed with the
Securities and Exchange Commission; and (iii) the records relating to the
organization of the Company and such other documents as we deemed it necessary
to examine as a basis for the opinions hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
(i) The Company is a corporation organized and validly existing
under the laws of the state of Delaware.
(ii) The shares of the Stock to be sold by the Selling Stockholder,
when issued and sold in the manner contemplated by the
Registration Statement, will be, legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name therein under the caption
"Validity of Shares."
Respectfully submitted,
CALFEE, HALTER & GRISWOLD
370/18746GRB.400
May 8, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
Pursuant to the requirements of the Securities and Exchange Act of 1934, we
are transmitting herewith the attached Form S-3.
Very truly yours,
Handex Environmental Recovery, Inc.
By: /s/ John T. St. James
-------------------------
John T. St. James
Vice President, Treasurer
