As filed with the Securities and Exchange Commission on December
15, 1995.
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CONTINENTAL WASTE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2909512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
67 Walnut Avenue, Suite 103
Clark, New Jersey
(908) 396-0018
(Address including zip code, and telephone number, including area
code, of registrant's principal executive offices)
____________________
CARLOS E. AGUERO
CONTINENTAL WASTE INDUSTRIES, INC.
67 Walnut Avenue, Suite 103
Clark, New Jersey 07066
(908) 396-0018
(Name and address, including zip code, and telephone number,
including area code, of agents for service)
With a Copy to:
MICHAEL J. CHOATE, ESQ.
SHEFSKY FROELICH & DEVINE LTD.
444 North Michigan Avenue, Suite 2500
Chicago, Illinois 60611
(312) 527-4000
____________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement has
become effective.
___________________
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___
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. _______
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. ____
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
________
CALCULATION OF REGISTRATION FEE
Proposed
Title of each Proposed Maximum
class of Amount to Maximum Aggregate Amount of
securities to be Offering Price Offering Registration
be registered Registered Per Share(1) Price (1) Fee
Common Stock,
par value 1,367,934 $18.75 $25,648,763 $8,845
$0.001 per
share
(1) Pursuant to Rule 457(c), the fee is calculated on the basis
of the average of the bid and asked prices on December 8,
1995 on the Nasdaq National Market for the Common Stock.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
1,367,934 Shares
CONTINENTAL WASTE INDUSTRIES, INC.
Common Stock
($0.001 par value per share)
This Prospectus relates to the public offering of up to
1,367,934 shares (the "Shares") of common stock, $0.001 par value
per share (the "Common Stock"), of Continental Waste Industries,
Inc. (the "Company"). All of the Shares offered hereby may be
sold from time to time by the stockholders described herein (each
a "Selling Stockholder," collectively the "Selling Stockholders")
in transactions in which they and any broker-dealer through whom
such Shares are sold may be deemed to be underwriters within the
meaning of the Securities Act of 1933, as amended (the
"Securities Act"), as more fully described herein. Any
commissions paid or concessions allowed to any broker-dealer,
and, if any broker-dealer purchases such Shares as principal, any
profits received on the resale of such Shares, may be deemed to
be underwriting discounts and commissions under the Act. The
Company will not receive any of the proceeds from the sale of the
Shares but will pay the expenses incurred in registering the
Shares, including legal and accounting fees. Selling
Stockholders will bear all other expenses of this offering,
including brokerage fees, any underwriting discounts or
commissions.
The Shares have not been registered for sale under the
securities laws of any state or other jurisdiction as of the date
of this Prospectus.
On December 8, 1995, the Company had 8,371,843 shares of its
Common Stock outstanding. The Common Stock is included for
quotation on the Nasdaq National Market ("Nasdaq") under the
symbol "CONT." The last reported sale price of the Common Stock
on the Nasdaq on December 12, 1995 was $19.00 per share.
Prospective purchasers should carefully consider the matters set
forth under the caption "Risk Factors" located on page 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is December 15, 1995.
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any State.
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, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). These reports, proxy statements
and other information can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549; New York Regional Office,
Public Reference Room, Seven World Trade Center, 13th Floor, New
York, New York 10048; and Chicago Regional Office, Suite 1400,
500 West Madison Street, Chicago, Illinois 60661. Copies of this
material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Common Stock is included for quotation on
the Nasdaq National Market and these reports, proxy statements
and other information concerning the Company may be inspected at
the office of the Nasdaq National Market, 1735 K Street, N.W.,
Washington, D.C. 20006. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and
regulations of the Commission. The Registration Statement and
any amendments thereto, including exhibits filed as a part
thereof, are available for inspection and copying as set forth
above.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company
with the Commission under the Exchange Act are incorporated
herein by reference: (i) the Company's Annual Report on Form 10-
KSB for the year ended December 31, 1994; (ii) the Company's
Quarterly Report on Form 10-QSB for the quarter ended March 31,
1995; (iii) the Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1995; and (iv) the Company's Quarterly
Report on Form 10-QSB for the quarter ended September 30, 1995.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering made
by this Prospectus, shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the
date of filing these documents. Any statements contained in a
document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed
document which also is incorporated by reference herein) modifies
or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except
as so modified or superseded. All information appearing in this
Prospectus is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the
documents incorporated herein by reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
(OTHER THAN EXHIBITS THERETO) ARE AVAILABLE WITHOUT CHARGE, UPON
WRITTEN OR ORAL REQUEST BY ANY PERSON TO WHOM THIS PROSPECTUS HAS
BEEN DELIVERED, FROM THE COMPANY. REQUESTS SHOULD BE DIRECTED TO
JEFFREY E. LEVINE, SENIOR VICE PRESIDENT AND GENERAL COUNSEL, 67
WALNUT AVENUE, SUITE 103, CLARK, NEW JERSEY 07066 (TELEPHONE
908-396-0018).
___________________________________
THE COMPANY
Continental Waste Industries, Inc. (the "Company")
provides integrated solid waste management services to
approximately 175,000 residential, commercial and industrial
customers concentrated primarily in the Midwestern and Mid-South
regions of the United States. These services include
non-hazardous landfill disposal, solid waste collection, transfer
station operations and recycling programs. The Company also
provides solid waste management services in Costa Rica and
Mexico.
The Company has grown both through 27 separate
acquisitions and through internal growth expansion. The Company
significantly expanded the scope of its operations in July 1994
by acquiring a controlling interest in Victory Waste Incorporated
("Victory") and G.E.M. Environmental Management, Inc. ( GEM )
which collectively operated three landfills and a waste
collection company in Indiana. Since the Company's public
offering in November 1994, the Company has completed seven
acquisitions, representing annual revenues of approximately
$15.0 million based on nine months of operating results for the
period ended September 30, 1995.
The Company conducts its domestic solid waste operations
in Indiana, Michigan, Missouri, Illinois, Kentucky, South
Carolina, Tennessee, Mississippi and West Virginia. The Company
operates primarily in smaller metropolitan markets and in rural
areas, although some sites are economically accessible from
Chicago and other large cities. The Company currently owns and
operates a total of nine landfills, nine waste collection
operations, thirteen transfer stations and three municipal
recycling facilities. At its landfills, the Company has
approximately 750 acres permitted or in various stages of
permitting approval. The Company accepted approximately 1.2
million tons of solid waste at its landfills during the nine
months ended September 30, 1995.
The Company's growth strategy is centered around landfill
and collection business acquisitions and a landfill capacity
expansion program primarily within midsized regional markets, as
well as selected Latin American markets. The Company pursues a
"hub and spoke" acquisition strategy, involving the acquisition
of landfills in its target markets as well as collection
operations around Company-owned landfills. The Company targets
both profitable and under-performing landfills and collection
businesses. The Company will also consider acquiring recycling
businesses in markets where these businesses can complement the
Company's solid waste management services.
The Company believes it enhances the productivity of
acquired businesses through its expertise in regulatory and
permitting matters and through its internal landfill remediation
and construction capabilities. The Company also seeks to
optimize the performance of acquired businesses and the
utilization of disposal capacity by securing a captive waste
stream for each landfill site through an integrated network of
collection companies and transfer stations; through long-term
disposal contracts; through enhanced marketing initiatives;
through the public contract bidding process; through acquisitions
of customer lists; and through other programs that reduce
dependence on waste volumes from unaffiliated haulers. At
present, approximately 48% of the waste received by the Company's
landfills is derived from the Company's own collection and
transfer station operations or is received under contracts of
more than one year in duration. The Company seeks to improve
operating efficiencies and profitability through densifying
collection routes, rationalizing operating and administrative
costs, and selectively increasing prices.
The Company's waste hauling and transfer operations
currently dispose at Company landfills more than 90% of the waste
which they collect. The Company targets collection markets where
it can be the leading provider of services. In each of the
markets where the Company provides collection services, the
Company believes that it is the leading collector and has
established a balanced mix of residential, commercial, industrial
and municipally-contracted service revenues.
Another element of the Company's growth strategy is
evidenced by its recent entry into the Latin American
marketplace. In August 1994, the Company completed the
acquisition of the only privately-owned, non-hazardous waste
landfill operation in Costa Rica. This business holds municipal
contracts to serve 55,000 residential and small commercial
customers located in the first, second and sixth largest cities
in Costa Rica. In August 1995, the Company acquired a 72%
interest in Procesa Continental S.A. de C.V. ( Procesa ), a
Mexican landfill, engineering and management company
headquartered in Mexico City. The Company believes Procesa
provides the Company with a strategic entry into the Mexican
solid waste disposal market and provides a base for expanding the
Company's operations in Mexico. The Company intends to increase
its operations in Latin America, primarily through obtaining
operating contracts and secondarily through joint ventures with
local entities or by acquiring existing waste collection and/or
disposal businesses.
The Company is a Delaware corporation with its principal
executive offices located at 67 Walnut Avenue, Suite 103, Clark,
New Jersey 07066; (908) 396-0018.
RISK FACTORS
Prospective investors should be aware of the following
material risks relating to an investment in the Company:
Extensive Environmental and Land Use Laws and Regulations. The
Company is subject to extensive and evolving environmental and
land use laws and regulations which have become increasingly
stringent in recent years as a result of greater public interest
in protecting the environment. These laws and regulations affect
the Company's business in many ways, including as set forth
below, and will continue to impose substantial costs on the
Company. Additionally, any reduction in enforcement or
relaxation of environmental regulations could have a material
adverse effect on the Company's business and financial condition.
Extensive Permitting Requirements. In order to
develop, operate and expand solid waste management
facilities, it is generally necessary to obtain
and maintain in effect one or more permits as well
as zoning, environmental and/or other land use
approvals. These permits and approvals are
difficult and time consuming to obtain and are
frequently subject to opposition by various
elected officials or citizens. In addition,
facility operating permits may be subject to
modification or revocation, and it may be
necessary to periodically renew a permit, which
may reopen opportunities for opposition to the
permit. There can be no assurance that the
Company will be successful in obtaining and
maintaining in effect the permits and approvals
required for the successful operation and growth
of its business, and the failure by the Company to
obtain or maintain in effect a permit significant
to its business could have a material adverse
effect on the Company's business and financial
condition.
Design, Operation and Closure Requirements. The
design, operation and closure of landfills is
extensively regulated. These regulations include,
among others, the regulations (the "Subtitle D
Regulations") establishing minimum federal
requirements adopted by the United States
Environmental Protection Agency (the "EPA") in
October 1991 under Subtitle D of the Resource
Conservation and Recovery Act of 1976 ("RCRA").
The Subtitle D Regulations require all states to
adopt regulations regarding landfill design,
operation and closure requirements that are no
less stringent than the Subtitle D Regulations.
Most states, including those states in which the
Company's landfills are located, have extensive
landfill regulations which have been updated or
replaced with new regulations consistent with the
Subtitle D Regulations. These federal and state
regulations require the Company to monitor
groundwater, provide financial assurance, and
fulfill closure and post-closure obligations.
These regulations could also require the Company
to undertake investigatory or remedial activities,
to curtail operations or to close a landfill
temporarily or permanently. Future changes in
these regulations may require the Company to
modify, supplement, or replace equipment or
facilities at costs which may be substantial.
Although the Company maintains reserves for the
payment of obligations related to the closure and
post-closure monitoring of landfill sites and the
remediation of its facilities, the financial
obligations related to these responsibilities may
exceed the Company s reserves, thereby having a
material adverse effect on the Company s business
and financial condition.
Legal and Administrative Proceedings. In the
ordinary course of its business, the Company may
become involved in a variety of legal and
administrative proceedings relating to land use
and environmental laws and regulations. These may
include proceedings by federal, state or local
agencies seeking to impose civil or criminal
penalties on the Company for violations of those
laws and regulations, or to impose liability on
the Company under federal or comparable state
statutes, or to revoke or deny renewal of a
permit; actions brought by citizens groups,
adjacent landowners or governmental entities
opposing the issuance of a permit or approval to
the Company or alleging violations of the permits
pursuant to which the Company operates or laws or
regulations to which the Company is subject; and
actions seeking to impose liability on the Company
for any environmental damage at its landfill sites
or that its landfills or other properties may have
caused to adjacent landowners or others, including
groundwater or soil contamination. A local
citizens group recently filed objections to
issuance of a renewed permit at the Company's
United Refuse landfill near Ft. Wayne, Indiana.
The Company could incur substantial legal expenses
during the course of this or other proceedings,
and these expenses or the adverse outcome of one
or more of these proceedings could have a material
adverse effect on the Company's business and
financial condition.
During the ordinary course of its operations, the
Company has from time to time received, and
expects that it may in the future from time to
time receive, notices from governmental
authorities that its operations are not in
compliance with its permits or certain applicable
environmental or land use laws and regulations.
The Company generally seeks to work with the
authorities to resolve the issues raised by such
citations or notices. There can be no assurance,
however, that the Company will always be
successful in this regard, and the failure to
resolve a significant issue could have a material
adverse effect on the Company s business and
financial condition.
Potential Liabilities. There may be various
adverse consequences to the Company in the event
that a facility owned or operated by the Company
causes environmental damage, in the event that
waste transported by the Company causes
environmental damage at another site, or in the
event that the Company fails to comply with
applicable environmental and land use laws and
regulations or the terms of a permit or
outstanding consent order. These may include the
imposition of substantial monetary penalties on
the Company; the issuance of an order requiring
the curtailment or termination of the operations
involved or affected; the revocation or denial of
permits or other approvals necessary for continued
operation or landfill expansion; the imposition of
liability on the Company in respect of any
environmental damage (including groundwater or
soil contamination) both at its landfill sites as
well as those of adjacent landowners or others
which may have been caused by the Company s
landfills or by waste transported by the Company;
the imposition of liability on the Company under
the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
( Superfund ) or under comparable state laws; and
criminal liability for the Company or its
officers. Any of the foregoing could adversely
affect the Company's business and financial
condition. The Company has not been able to
obtain, at a reasonable premium, significant
environmental impairment liability insurance.
Liability for environmental damage could have a
material adverse effect on the Company s business
and financial condition.
Type, Quantity and Source Limitations. Certain
permits and approvals may limit the types or
quantity of waste that may be accepted at a
landfill during a given time period. In addition,
certain permits and approvals, as well as certain
state and local regulations, may limit a landfill
to accepting waste that originates from specified
geographic areas or seek to restrict the import of
out-of-state waste or otherwise discriminate
against out-of-state waste. Some of the waste
accepted at the Company s landfills is transferred
across state borders. Generally, restrictions on
the import of out-of-state waste have not
withstood judicial challenge. However, proposed
federal legislation would allow individual states
to prohibit the disposal of out-of-state waste or
to limit the amount of out-of-state waste that
could be imported for disposal and would require
states, under certain circumstances, to reduce the
amounts of waste exported to other states. If
this or similar legislation is enacted, states in
which the Company operates landfills could act to
limit or prohibit the import of out-of-state
waste. Such state actions could adversely affect
landfills within those states that receive a
significant portion of waste originating from out-
of-state and could have a material adverse effect
on the company's business and financial condition.
In addition, certain states and localities may,
for economic or other reasons, restrict the export
of waste from their jurisdiction or require that a
specified amount of waste be disposed of at
facilities within their jurisdiction. Recently,
the United States Supreme Court held
unconstitutional, and therefore invalid, a local
ordinance that sought to impose flow controls.
However, certain state and local jurisdictions
continue to enforce these restrictions. These
restrictions could result in reduced waste volume
in certain areas, which may adversely affect the
Company's ability to operate its landfills at
their full capacity and/or affect the prices that
can be charged for landfill disposal services.
These restrictions may also result in higher
disposal costs for the Company's collection
operations. An inability to pass along these
higher operating or disposal costs to customers
could have a material adverse effect on the
Company s business and financial condition.
Limitations on Expansion. The Company's growth strategy
depends, in part, on its ability to expand current and additional
disposal facilities and related collection businesses. The
difficulty and uncertainty related to permitting new or expanding
existing disposal facilities, together with the continuing
decrease in the number of operating landfills throughout the
country has caused intense competition in the waste disposal
industry for the acquisition of existing landfills and related
businesses. Accordingly, it may become uneconomical for the
Company to make further acquisitions or the Company may be unable
to locate suitable acquisition candidates, particularly in
markets the Company does not already serve. There can be no
assurance of future opportunities to acquire or expand landfills
at reasonable cost within the Company's financial capability.
Further, any growth of the Company through the expansion or
modification of permits at existing disposal facilities will
require substantial capital expenditures for engineering fees and
for construction costs if such permits are granted. The
inability to acquire or expand landfills at a reasonable cost,
secure necessary permits, or fund capital expenditures related
thereto could have a material adverse effect on the Company s
business and financial condition.
Capitalized Expenditures. In accordance with generally
accepted accounting principles, the Company capitalizes certain
expenditures and advances relating to its acquisitions, pending
acquisitions and landfill development and expansion projects.
Indirect acquisition costs, such as executive salaries, general
corporate overhead, public affairs and other corporate services,
are expensed as incurred. The Company charges against earnings
any unamortized capitalized expenditures and advances (net of any
portion thereof that the Company estimates will be recoverable,
through sale or otherwise) relating to any operation that is
permanently shut down, any pending acquisition that is not
consummated, and any landfill development or expansion project
not successfully completed. There can be no assurance that the
Company will not be required to incur a charges in the future
against earnings in accordance with this policy, which charges,
against earnings, if significant, could have a material adverse
effect on the Company s business and financial condition.
Competition. The solid waste collection and disposal
business is highly competitive and requires substantial amounts
of capital. The Company competes with numerous waste management
companies, many of which have significantly larger operations and
greater resources. The Company also competes with counties and
municipalities that maintain their own waste collection and
disposal operations. These counties and municipalities may be
better positioned to finance these operations due to the
availability of tax revenues and tax exempt financing. In
addition, competitors may reduce the price of their services in
an effort to expand market share or to win competitively bid
municipal contracts.
The Company provides a portion of its residential
collection services under county and municipal contracts that are
subject to periodic competitive bidding. There is no assurance
that the Company will be the successful bidder in the future and
will be able to retain such contracts. The Company's inability
to compete with these larger and better capitalized companies, or
to replace any contract lost through the competitive bidding
process with a comparable contract within a reasonable time
period could have a material adverse effect on the Company's
business and financial condition.
Financial Assurance Obligations. The Company is
required, from time to time, to provide financial assurance in
connection with municipal residential collection contracts and to
a lesser extent private sector customers, and with the operation
or closure of landfills and post-closure monitoring and
corrective activities. If the Company were to be unable to
obtain surety bonds or letters of credit in sufficient amounts or
at reasonable rates, or to provide other required forms of
financial assurance, it might be precluded from entering into
additional municipal collection contracts or obtaining or
retaining required landfill permits and approvals. The inability
to provide financial assurance could have a material adverse
effect on the Company's business and financial condition.
Alternatives to Landfill Disposal. Alternatives to
landfill disposal, such as recycling, incineration and
composting, are increasingly being utilized in the waste
management industry. In addition, there has been a growing trend
at the state and local levels to mandate recycling and waste
reduction at the source and to prohibit the disposal of certain
types of wastes, such as yard wastes, at landfills. For example,
many states, including states in which the Company owns
landfills, have adopted bans on the disposal of yard waste or
leaves in landfills and many states have adopted rules
restricting or limiting disposal of tires at landfills. This may
result in the volume of waste going to landfills in certain
areas, which may affect the Company's ability to operate its
landfills at their full capacity and/or affect the prices that
can be charged for landfill disposal services.
Uncertainty of Operations in Latin America. The
Company's Latin American operations are subject generally to such
risks as currency fluctuations and exchange controls,
availability of suitable employees to control and coordinate
operations in different jurisdictions, changes in foreign laws or
governmental policies or attitudes concerning their enforcement,
political changes, uncertain local economic conditions, and
international tensions. An adverse change in any of these items
could have a material adverse effect on the Company's business
and financial condition.
The Company's Latin American operations are also subject
to risks associated with Latin American regulations governing
solid waste disposal operations. The inability or unwillingness
of governments in Latin America to enforce existing environmental
regulations could adversely affect demand for the Company's
services in Latin America and could have a material adverse
effect on the Company s business and financial condition. In
addition, changes in these regulations could have a material
adverse effect on the company's business and financial condition.
Dependence on Senior Management. The Company is highly
dependent upon its senior management team. The loss of the
services of any member of senior management may have a material
adverse effect on the Company s business and financial condition.
Economic Cycles and Seasonality. The Company's business
is affected by general economic conditions. There can be no
assurance that an economic downturn will not result in a
reduction in the volume of waste disposed at the Company's
operations and/or the price that the Company can charge for its
services. The Company's revenues may also be affected by
seasonal weather conditions. This is primarily attributable to:
(i) the volume of waste relating to construction and demolition
activities and activities relating to the remediation of
contaminated soils tending to increase in the spring and summer
months; and (ii) the volume of industrial and residential waste
in the regions where the Company operates tending to decrease
during the winter months. Particularly harsh weather conditions
may result in the temporary suspension of certain of the
Company's operations which could have a material adverse effect
on the Company's business and financial condition.
Prohibitions Under the Delaware General Corporation Law
Restricting Certain Business Combinations. Section 203 of the
Delaware Corporation Law (the "Delaware Antitakeover Law")
prohibits, under certain circumstances, "business combinations"
between a Delaware corporation, whose stock is publicly-traded or
held by more than 2,000 stockholders, and an "interested
stockholder" of such corporation. The provisions prohibiting
business combinations could delay or frustrate the removal of
incumbent directors or a change in control of the Company. The
provisions also could discourage, impede, or prevent a merger,
tender offer or proxy contest, even if such event would be
favorable to the interests of stockholders. See "Description of
Capital Stock Delaware Antitakeover Law."
Potential Insurance of Preferred Shares. The Company's
Certificate of Incorporation authorizes the issuance of: (i)
425,200 shares of preferred stock without designation, par value
of $5.64 per share; (ii) 119,000 shares of preferred stock
without designation, par value of $20.00 per share (the preferred
shares described in items (i) and (ii) are collectively referred
to as the "Non-designated Preferred Shares"); and (iii) 100,000
shares of blank check preferred stock, par value $0.001 per share
(the "Blank Check Preferred Shares"); none of which shares of
preferred stock were issued and outstanding as of the date of
this Prospectus. Although the issuance of Non-designated
Preferred Shares would require stockholder approval, the
Company's certificate of incorporation grants the Board of
Directors the right to cause the Company to issue the Blank Check
Preferred Shares in one or more series. The Board of Directors
has the authority to issue the Blank Check Preferred Shares and
determine or alter for each such series, the voting powers, full
or limited, or new voting powers, and such designations,
preferences, and relative participating, optional or other
special rights and such qualifications, limitations, or
restrictions. If the Company should ever issue preferred shares,
such preferred shares could contain voting or other rights which
could discourage, impede, or prevent a merger, tender offer or
proxy contest which could be favorable to the interests of
stockholders.
SELLING STOCKHOLDERS
An aggregate of up to 1,367,934 Shares may be offered by
certain Selling Stockholders. The following table sets forth
certain information with respect to the Selling Stockholders.
The Company will not receive any of the proceeds from the sale of
these Shares. Based on information provided by the Selling
Stockholders, no Selling Stockholder owns 1% or more of the
Company's outstanding Common Stock prior to this Offering, except
as indicated below. Beneficial ownership after the Offering will
depend on the number of Shares sold by each Selling Stockholder.
Shares Shares to be
Beneficially Beneficially
Owned Prior Shares Owned After
to Offering Being Offering
____________ Offered _____________
Selling Stockholder Number Percent Number Percent
Carlos Alberto Aguero 1,000 * 1,000 -- --
Maggie Aguero 2,338 * 2,338 -- --
Edward Albert, Jr. 14,043 * 14,043 -- --
Apex Investment 254,065 3.0% 254,065 -- --
Fund, L.P.
Henry Araujo 4,013 * 4,013 -- --
Bryan Barker 3,114 * 3,114 -- --
Fay Barker 1,774 * 1,774 -- --
Marvin Barker 6,059 * 6,059 -- --
Royce Barker 8,542 * 8,542 -- --
Scott Barker 1,576 * 1,576 -- --
Rameiro Bertot & 165 * 165 -- --
Sylvia Bertot
Sylvia Bertot, 900 * 900 -- --
custodian for
Jeremy Alvarez
Allen R. Brodbeck 2,608 * 2,608 -- --
Roberto Burgaleta 888 * 888 -- --
Camelford Holdings, 5,225 * 5,225 -- --
Ltd.
Jerome Case 600 * 600 -- --
William Cunningham 1,667 * 1,667 -- --
Arturo Davila 25,000 * 25,000 -- --
Michael J. Drury 36,816 * 36,816 -- --
Fred Helgeson 294 * 294 -- --
Environmental Venture 398,852 4.8% 398,852 -- --
Fund Limited Partnership
First National Bank 1,833 * 1,833 -- --
of Terre Haute
Gregory Gibson 13,916 * 13,916 -- --
Nikki Gibson 433 * 433 -- --
Alva Leon Gilliam 7,793 * 7,793 -- --
Alva Lynn Gilliam 7,793 * 7,793 -- --
Gary Gilliam 7,793 * 7,793 -- --
Stephen Gilliam 7,793 * 7,793 -- --
Elisabeth Imhoff 909 * 909 -- --
Stanley Kaplan 2,500 * 2,500 -- --
Michael E. King 594 * 594 -- --
Diane Lake 1,774 * 1,774 -- --
John E. Lawlor 4,000 * 4,000 -- --
MBI, Inc. 8,149 * 8,149 -- --
Gates Maloney 888 * 888 -- --
Roger McDonald 1,000 * 1,000 -- --
Barry McFarland 2,348 * 2,348 -- --
Lorna Morneo 3,344 * 3,344 -- --
Niurka Morena 1,000 * 1,000 -- --
Sherry Nesler 15,990 * 15,990 -- --
Oakwood Holding Ltd. 2,638 * 2,638 -- --
Ana Rafaela Perez 1,000 * 1,000 -- --
John W. Perry 333 * 333 -- --
George Plews 7,134 * 7,134 -- --
Steven Pruett 1,338 * 1,338 -- --
Francisco A. Saavedra 1,774 * 1,774 -- --
Salcott Holdings, Ltd. 55,887 * 55,887 -- --
Kathy Salopek 13,300 * 13,300 -- --
Timothy J. Salopek 13,300 * 13,300 -- --
Dallas Schnitizius 56,913 * 56,913 -- --
G. Michael Shannon 76,880 * 76,880 -- --
Sequoia Technology 13,333 * 13,333 -- --
Partners III
Anthony D. Smith, Sr. 8,500 * 8,500 -- --
Joel Stone 59,114 * 59,114 -- --
Raul E. Tamayo & 1,338 * 1,338 -- --
Carmen Tamayo*
The Productivity Fund 192,308 2.3% 192,308 -- --
Limited Partnership
Wightman 3,455 * 3,455 -- --
Environmental, Inc.
Total 1,367,934 1,367,934 -- --
The number of Shares which may actually be sold by the
Selling Stockholders will be determined from time to time by them
and will depend upon a number of factors, including the price of
the Shares from time to time. Because the Selling Stockholders
may offer all or none of the Shares that they hold and because
the offering contemplated by this Prospectus is not being
underwritten, no estimate can be given as to the number of Shares
that will be held by the Selling Stockholders.
There are no material relationships between any of the
Selling Stockholders and the Company or any of its predecessors
or affiliates, nor have any such material relationships existed
within the past three years, except as follows:
Allen R. Brodbeck, Arturo Davila, Michael J. Drury,
Steven Pruett, Timothy J. Salopek, Dallas Schnitzius and G.
Michael Shannon are employees of the Company or its subsidiaries.
Environmental Venture Fund Limited Partnership, Apex
Investment Fund, L.P., The Productivity Fund Limited Partnership
(referred to collectively as the "Venture Investors"), Mr.
Aguero, Mr. Volini (collectively with the Venture Investors
referred to as the "Agreeing Stockholders"), the Company and Mr.
Maxwell entered into an agreement (the "Stockholders' Agreement")
dated as of May 10, 1994. The Stockholders' Agreement contains a
voting agreement whereby the parties agree to take such actions
as necessary to maintain the membership of the Board of Directors
to include Messrs. Aguero, Volini, Carlson, Haider and the
designee of the Venture Investors (currently Mr. Maxwell). The
Stockholders' Agreement grants the Agreeing Stockholders rights
of first refusal to shares of Common Stock offered by other
Agreeing Stockholders, under certain circumstances. In addition,
upon the death of either Messrs. Aguero or Volini, the Company is
granted the right to purchase the shares held by the decedent
party's estate or legal representative, based upon the average
closing price as quoted on the Nasdaq National Market for the 15
trading days ending onew week prior to the date of repurchase
(the "Repurchase Price"). Further, upon the death of either
Messrs. Aguero or Volini, the decedent party's shares of Common
Stock upon the quotient obtained by dividing proceeds of any life
insurance policy on the decedent by the Repurchase Price. The
Company is the beneficiary of certain key man insurance on the
life of Mr. Aguero, the proceeds of which would be used to fund
any repurchase obligations with respect to Common Stock owned by
Mr. Aguero. Finally, the Stockholders' Agreement grants the
Venture Investors an unlimited number of demand registration
rights covering all of the shares of Common Stock owned by the
Venture Investors.
The Company purchased materials totaling approximately
$2.1 million from Mid-America Lining Co. since 1994. Mr.
Brodbeck owns 25% of the outstanding equity of Mid-America Lining
Co.
The Company purchased certain assets from Mr. Salopek and
his spouse, Mrs. Kathy Salopek, in exchange for 26,600 shares of
Common Stock on October 19, 1994. The purchased assets include
all stock of WPP Services, Inc. owned by Mr. Salopek and his
spouse, his interest in the Gila Bend landfill development
project, and the right to assume Mr. Salopek's position in
certain other Latin American solid waste business ventures in
various stages of development. The Company also agreed to
reimburse Mr. Salopek for development expenses incurred
personally by Mr. Salopek at the Company's Costa Rican
operations. The shares of Common Stock exchanged for these
assets were issued in private transactions exempt from
registration under the federal securities laws.
In August 1995, the Company provided Mr. Salopek with
10.0% of the outstanding shares of common stock of CWI Mexican
Ventures S.A. de C.V., parent company of Procesa. Pursuant to
the terms of Mr. Salopek's employment agreement, Mr. Salopek is
entitled to a Mexican Development Bonus equal to a 10% interest
in any new projects developed by the Company in Mexico. As a
result, in August 1995, Mr. Salopek received an effective
interest equal to 8% of the outstanding shares of Procesa,
leaving the Company with a 72% interest in Procesa. The Company
effectively acquired 72% of the outstanding shares of Procesa
after providing Mr. Salopek with the bonus described above.
DESCRIPTION OF CAPITAL STOCK
General
The authorized capital stock of the Company consists of:
(i) 10,000,000 shares of Common Stock, par value $.001 per share,
8,371,843 of which shares were outstanding as of the date of this
Prospectus; (ii) 425,200 shares of preferred stock without
designation, par value of $5.64 per share, none of which were
issued and outstanding as of the date of this Prospectus; (iii)
119,000 shares of preferred stock without designation, par value
of $20.00 per share, none of which were issued and outstanding as
of the date of this Prospectus; and (iv) 100,000 Blank Check
Preferred Shares, par value $0.001 per share, none of which were
issued and outstanding as of the date of this Prospectus.
Common Stock
Each share of Common Stock is entitled to one vote. There
are no pre-emptive, subscription, conversion or redemption rights
pertaining to the shares of Common Stock. Stockholders are
entitled to receive such dividends as declared by the board of
directors out of assets legally available therefor and to share
ratably in the assets of the Company available upon liquidation.
The Certificate of Incorporation does not provide for
cumulative voting. Therefore, stockholders do not have the right
to aggregate their votes for the election of directors and,
accordingly, stockholders holding more than 50% of the shares of
Common Stock outstanding can elect all of the directors.
Preferred Stock
The Company is authorized to issue 425,200 shares of
preferred stock without designation, par value $5.64 per share,
and 119,000 shares of preferred stock without designation, par
value $20.00 per share. The determination of voting powers,
designations, preferences and relative, participating, optional
and other special rights, and qualifications, limitations or
restrictions relating to these shares of preferred stock is
subject to stockholder approval. As of the date of this
Prospectus, there were no shares of preferred stock outstanding.
The certificate of incorporation grants the board of
directors the right to cause the Company to issue, from time to
time, all or part of the Blank Check Preferred Shares remaining
undesignated in one or more series, and to fix the number of
Blank Check Preferred Shares and determine or alter for each
series, the voting powers, full, limited, or none, and other
designations, preferences, or relative, participating, optional
or other special rights and such qualifications, limitations, or
restrictions thereof. As of the date of this Prospectus, there
were no Blank Check Preferred Shares outstanding.
Transfer Agent
The Company's transfer agent is LaSalle National Trust,
N.A., 135 South LaSalle Street, Room 360, Chicago, Illinois
60603-4105.
Delaware Antitakeover Law
The Delaware Antitakeover Law prohibits certain "business
combinations" between a Delaware corporation, whose stock is
generally publicly-traded or held by more than 2,000
stockholders, and an "interested stockholder" of the corporation
for a three-year period following the date that such stockholder
became an interested stockholder, unless: (i) the corporation has
elected, in its certificate of incorporation, not to be governed
by the Delaware Antitakeover Law (the Company has not made such
an election); (ii) the business combination was approved by the
board of directors of the corporation before the other party to
the business combination became an interested stockholder;
(iii) upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the commencement of the transaction
(excluding voting stock owned by directors who are also officers
or held in employee benefit plans in which the employees do not
have a confidential right to tender or vote stock held by the
plan); or (iv) the business combination was approved by the board
of directors of the corporation and ratified by 66 2/3% of the
voting stock which the interested stockholder did not own. The
three-year prohibition also does not apply to certain business
combinations proposed by an interested stockholder following the
announcement or notification of certain extraordinary
transactions involving the corporation and a person who had not
been an interested stockholder during the previous three years or
who became an interested stockholder with the approval of a
majority of the corporation's directors or who became an
interested stockholder prior to the amendment to the
corporation's certificate of incorporation to subject the
corporation to the Delaware Antitakeover Law. The term "business
combination" is defined generally to include mergers or
consolidations between a Delaware corporation and an interested
stockholder, transactions with an interested stockholder
involving the assets or stock of the corporation or its
majority-owned subsidiaries, and transactions which increase an
interested stockholder's percentage ownership of stock. The term
"interested stockholder" is defined, generally, as those
stockholders who become beneficial owners of 15% or more of a
Delaware corporation's voting stock. See Risk Factors
Prohibitions Under the Delaware General Corporation Law
Restricting Certain Business Combinations.
These provisions could delay or frustrate the removal of
incumbent directors or a change in control of the Company. These
provisions also could discourage, impede, or prevent a merger,
tender offer or proxy contest, even if such an event would be
favorable to the interests of the stockholders.
Indemnification of Directors and Officers
Section 2 of Article Eighth of the Company's Certificate
of Incorporation provides for indemnification of the Company's
officers and directors to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law (the DGCL ).
Section 145 of the DGCL provides for indemnification of directors
and officers from and against expenses (including attorney s
fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal,
administrative or investigative claim or proceeding (including
civil actions brought as derivative actions by or in the right of
the corporation but only to the extent of expenses reasonably
incurred in defending or settling such action) in which they may
become involved by reason of being a director or officer of the
corporation if the director or officer acted in good faith and in
a manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and, in addition, in
criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If, in an action brought by or in the
right of the corporation, the director or officer is adjudged to
be liable for negligence or misconduct in the performance of his
duty, he will only be entitled to this indemnity as the court
finds to be proper. Persons who are successful in defense of any
claim against them are entitled to indemnification as of right
against expenses actually and reasonably incurred in connection
therewith. In all other cases, indemnification shall be made
(unless otherwise ordered by a court) only if the board of
directors, acting by a majority vote of a quorum of disinterested
directors, independent legal counsel or holders of a majority of
the shares entitled to vote, determines that the applicable
standard of conduct has been met. Section 145 also provides this
indemnity for directors and officers of a corporation who, at the
request of the corporation, act as directors, officers, employees
or agents of other corporations, partnerships or other
enterprises.
Section 1 of Article Eighth of the Company's
Certificate of Incorporation limits the liability of the
Company's directors to the Company or its stockholders to the
fullest extent permitted by the DGCL. Section 102(b)(7) of the
DGCL provides that personal monetary liabilities of a director
for breaches of his fiduciary duties as a director may not be
eliminated with regard to any breach of the duty of loyalty,
failing to act in good faith, intentional misconduct or knowing
violation of law, payment of an unlawful dividend, approval of an
illegal stock repurchase, or obtainment of an improper personal
benefit. Such a provision has no affect on the availability of
equitable remedies, such as an injunction or recision, for breach
of fiduciary duty.
The employment agreements of certain directors and
officers contain a provision similar to the provisions of the
Certificate of Incorporation. The Company maintains directors
and officers liability insurance that will insure against
liabilities that directors and officers of the Company may incur
in such capacities.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted for directors, officers and
controlling persons of the Company pursuant to the foregoing, or
otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
PLAN OF DISTRIBUTION
This Prospectus, as appropriately amended or
supplemented, may be used from time to time by the Selling
Stockholder, or his transferees, to offer and sell the Shares in
transactions in which the Selling Stockholder and any broker-
dealer through whom any of the Shares are sold may be deemed to
be underwriters within the meaning of the Securities Act. The
Company will receive none of the proceeds from any such sales.
There presently are no arrangements or understandings, formal or
informal, pertaining to the distribution of the Shares.
The Company anticipates that resales of the Shares by the
Selling Stockholders will be effected from time to time on the
open market in ordinary brokerage transactions on the Nasdaq
National Market ("Nasdaq"), on which the Common Stock is included
for quotation, in the over-the-counter market, or in private
transactions (which may involve crosses and block transactions).
The Shares will be offered for sale at market prices prevailing
at the time of sale or at negotiated prices and on terms to be
determined when the agreement to sell is made or at the time of
sale, as the case may be. The Shares may be offered directly,
through agents designated from time to time, or through brokers
or dealers. A member firm of the Nasdaq may be engaged to act as
the Selling Stockholder's agent in the sale of the Shares by the
Selling Stockholder and/or may acquire Shares as principal.
Member firms participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they
act as agent for the purchaser of such Shares, from such
purchaser), such commissions computed in appropriate cases in
accordance with the applicable rates of the Nasdaq, which
commissions may be at negotiated rates where permissible. Sales
of the Shares by the member firm may be made on the Nasdaq from
time to time at prices related to prices then prevailing. Any
such sales may be by block trade.
Participating broker-dealers may agree with the Selling
Stockholder to sell a specified number of shares at a stipulated
price per share and, to the extent such broker dealer is unable
to do so acting as agent for the Selling Stockholder to purchase
as principal any unsold shares at the price required to fulfill
the broker-dealer's commitment to the Selling Stockholder. In
addition or alternatively, shares may be sold by the Selling
Stockholder, and/or by or through the broker-dealers in special
offerings, exchange distributions, or secondary distributions
pursuant to and in compliance with the governing rules of the
Nasdaq, and in connection therewith commissions in excess of the
customary commission prescribed by the rules of such securities
exchange may be paid to participating broker-dealers, or, in the
case of certain secondary distributions, a discount or concession
from the offering price may be allowed to participating broker-
dealers in excess of such customary commission. Broker-dealers
who acquire shares as principal may thereafter resell such Shares
from time to time in transactions (which may involve cross and
block transactions and which may involve sales to and through
other broker-dealers, including transactions of the nature
described in the preceding two sentences) on the Nasdaq, in
negotiated transactions, or otherwise, at market prices
prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive commissions
from the purchasers of such shares.
Upon the Company's being notified by a Selling
Stockholder that a particular offer to sell the Shares is made, a
material arrangement has been entered into with a broker-dealer
for the sale of shares through a block trade, special offering,
exchange distribution, or secondary distribution, or any block
trade has taken place, to the extent required, a supplement to
this Prospectus will be delivered together with this Prospectus
and filed pursuant to Rule 424(b) under the Securities Act
setting forth with respect to such offer or trade the terms of
the offer or trade; including (i) the number of Shares involved,
(ii) the price at which the Shares were sold, (iii) any
participating brokers, dealers, agents or member firm involved,
(iv) any discounts, commissions and other items paid as
compensation from, and the resulting net proceeds to, the Selling
Stockholder, (v) that such broker-dealers did not conduct any
investigation to verify the information set out in this
Prospectus, and (vi) other facts material to the transaction.
Shares may be sold directly by the Selling Stockholders
or through agents designated by the Selling Stockholders from
time to time. Unless otherwise indicated in the supplement to
this Prospectus, any such agent will be acting on a best efforts
basis for the period of its appointment.
The Selling Stockholders and any brokers, dealers,
agents, member firm or others that participate with the Selling
Stockholders in the distribution of the Shares may be deemed to
be "underwriters" within the meaning of the Securities Act, and
any commissions or fees received by such persons and any profit
on the resale of the Shares purchased by such person may be
deemed to be underwriting commissions or discounts under the
Securities Act.
The Company may agree to indemnify the Selling
Stockholders as an underwriter under the Securities Act against
certain liabilities, including liabilities arising under the
Securities Act. Agents may be entitled under agreements entered
into with the Selling Stockholders to indemnification against
certain civil liabilities, including liabilities under the
Securities Act.
The Selling Stockholders will be subject to the
applicable provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, including
without limitation Rules 10b-2, 10b-6, and 10b-7, which
provisions may limit the timing of purchases and sales of any of
the Shares by the Selling Stockholders. All of the foregoing may
affect the marketability of the Shares.
The Company will pay substantially all the expenses
incident to this offering of the Shares by the Selling
Stockholder to the public other than brokerage fees, commissions
and discounts of underwriters, dealers or agents.
In order to comply with certain states' securities laws,
if applicable, the Shares will be sold in such jurisdictions only
through registered or licenses brokers or dealers. In addition,
in certain states the Shares may not be sold unless the Shares
have been registered or qualified for sale in such state or an
exemption from registration or qualification is available and the
Company or Selling Stockholders comply with the applicable
requirements.
LEGAL MATTERS
The validity of the Shares offered by this Prospectus has
been passed upon by Shefsky Froelich & Devine Ltd., Chicago,
Illinois.
EXPERTS
The consolidated financial statements of Continental
Waste Industries, Inc. as of December 31, 1994 and 1993 and for
the years ended December 31, 1994, 1993 and 1992 included in this
Prospectus have been audited by Arthur Andersen, LLP, independent
public accountants, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said report.
<PAGE>
No dealer, salesman or other person has
been authorized to give any information
or to make any representations other
than those contained or incorporated by
reference in this Prospectus, and if
given or made, such information or
representations must not be relied upon
as having been authorized by the Company.
Neither the delivery of this Prospectus CONTINENTAL
nor any sale made hereunder shall under
any circumstances create any implication WASTE INDUSTRIES,
that there has been no change in the
affairs of the Company since the date INC.
hereof. This Prospectus does not
constitute an offer or solicitation by
anyone in any jurisdiction in which the
person making such offer or solicitation
is not qualified to do so or to anyone
whom it is unlawful to make such offer
or solicitation
___________________
PROSPECTUS
___________________
1,367,934
TABLE OF CONTENTS Shares of
COMMON STOCK
Page ($.001 par value)
Available Information 2
Documents Incorporated by Reference 2
The Company 3
Risk Factors 4
Selling Stockholders 9
Description of Capital Stock 12
Plan of Distribution 14
Legal Matters 16 December 15, 1995
Experts 16
<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Insurance and Distribution
The following sets forth the estimated expenses and costs in
connection with the issuance and distribution of securities being
registered hereby. All such expenses will be borne by the
Company.
Securities and Exchange Commission Registration Fee 8,670
Accounting Fees and Expenses . . . . . . . . . 1,000*
Legal Fees and Expenses. . . . . . . . . . . . 4,000*
Blue Sky Fees and Expenses . . . . . . . . . . 1,000*
Miscellaneous. . . . . . . . . . . . . . . . . 1,330*
Total . . . . . . . . . . . . . . . . . . $ 16,000*
_____________________
*Estimated
Item 15. Indemnification of Directors and Officers.
Section 2 of Article Eighth of the Company's Certificate of
Incorporation provides for indemnification of the Company's
officers and directors to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law (the DGCL ).
Section 145 of the DGCL provides for indemnification of directors
and officers from and against expenses (including attorney s
fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal,
administrative or investigative claim or proceeding (including
civil actions brought as derivative actions by or in the right of
the corporation but only to the extent of expenses reasonably
incurred in defending or settling such action) in which they may
become involved by reason of being a director or officer of the
corporation if the director or officer acted in good faith and in
a manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and, in addition, in
criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If, in an action brought by or in the
right of the corporation, the director or officer is adjudged to
be liable for negligence or misconduct in the performance of his
duty, he will only be entitled to this indemnity as the court
finds to be proper. Persons who are successful in defense of any
claim against them are entitled to indemnification as of right
against expenses actually and reasonably incurred in connection
therewith. In all other cases, indemnification shall be made
(unless otherwise ordered by a court) only if the board of
directors, acting by a majority vote of a quorum of disinterested
directors, independent legal counsel or holders of a majority of
the shares entitled to vote, determines that the applicable
standard of conduct has been met. Section 145 also provides this
indemnity for directors and officers of a corporation who, at the
request of the corporation, act as directors, officers, employees
or agents of other corporations, partnerships or other
enterprises.
Section 1 of Article Eighth of the Company's Certificate
of Incorporation limits the liability of the Company's directors
to the Company or its stockholders to the fullest extent
permitted by the DGCL. Section 102(b)(7) of the DGCL provides
that personal monetary liabilities of a director for breaches of
his fiduciary duties as a director may not be eliminated with
regard to any breach of the duty of loyalty, failing to act in
good faith, intentional misconduct or knowing violation of law,
payment of an unlawful dividend, approval of an illegal stock
repurchase, or obtainment of an improper personal benefit. Such
a provision has no affect on the availability of equitable
remedies, such as an injunction or recision, for breach of
fiduciary duty.
The employment agreements of certain directors and officers
contain a provision similar to the provisions of the Certificate
of Incorporation.
The Company maintains directors and officers liability
insurance that will insure against liabilities that directors and
officers of the Company may incur in such capacities.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted for directors, officers and
controlling persons of the Company pursuant to the foregoing, or
otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
Item 16. Exhibits and Financial Statement Schedules
Exhibit
No. Description
5 Opinion of Shefsky Froelich & Devine Ltd. regarding the
legality of the Shares.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Shefsky Froelich & Devine Ltd. (included in
Exhibit 5 above).
24 Power of Attorney (included on signature page of
registration statement).
<PAGE>
Item 17. Undertakings
(a) The 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 Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
do not apply if the information required to the 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, as
amended (the "Exchange Act"), that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any
liability under the Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing
of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under
the Act 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.<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 City of Clark, State of New
Jersey on the 13th day of December, 1995.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Thomas A. Volini,
Chairman of the Board and
Chief Operating Officer
POWER OF ATTORNEY
We, the undersigned, do hereby severally constitute and
appoint Thomas A. Volini and Carlos E. Aguero, and each or either
of them, our true and lawful attorneys 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 or post-effective amendments to this Registration
Statement (including post-effective amendments or any abbreviated
registration statement, and any amendments thereto, filed
pursuant to Rule 462(b) increasing the amount of securities for
which registration is being sought), and to file the same with
all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each or either of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys and agents, and each of
them, or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Signature Title Date
/s/Thomas A. Volini Chairman of the Board December 13, 1995
and Chief Operating Officer
(Principal Executive Officer)
/s/Carlos E. Aguero President, Chief December 13, 1995
Executive Officer and
Director
(Principal Executive Officer)
/s/Michael J. Drury Senior Vice President December 13, 1995
(Chief Financial Officer
and Chief Accounting
Officer)
/s/Bret R. Maxwell Director December 13, 1995
/s/Donald H. Haider Director December 8, 1995
/s/Richard J. Carlson Director December 13, 1995
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Documents Page
5 Opinion of Shefsky Froelich & Devine Ltd.
regarding the legality of the Shares
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Shefsky & Froelich Ltd. (included
in Exhibit 5 above)
24 Power of Attorney (included on signature page of
registration statement)
<PAGE>
EXHIBIT 5
[Letterhead of Shefsky Froelich & Devine Ltd.]
December 12, 1995
Continental Waste Industries, Inc.
67 Walnut Avenue
Suite 103
Clark, New Jersey 07066
Re: Continental Waste Industries, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special securities counsel to Continental
Waste Industries, Inc., a Delaware corporation (the "Company"),
in connection with the preparation and filing of the registration
statement on Form S-3 (the "Registration Statement"), with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") and the prospectus
contained therein with respect to the public offering of up to
1,367,934 shares of the Company's common stock, par value $0.001
(the "Shares"). All of the Shares are being offered on behalf of
certain selling stockholders (the "Selling Stockholders"). In
connection with the registration of the Shares, you have
requested our opinion with respect to the matters set forth
below.
For purposes of this opinion, we have reviewed the
Registration Statement. In addition, we have examined the
originals or copies certified or otherwise identified to our
satisfaction of: (i) the Company's Certificate of Incorporation,
as amended to date; (ii) the By-laws of the Company, as amended
to date; (iii) records of the corporate proceedings of the
Company as we deemed necessary or appropriate as a basis for the
opinions set forth herein; and (iv) those matters of law as we
have deemed necessary or appropriate as a basis for the opinions
set forth herein. We have not made any independent review or
investigation of the organization, existence, good standing,
assets, business or affairs of the Company, or of any other
matters. In rendering our opinion, we have assumed without
inquiry the legal capacity of all natural persons, the
genuinesness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of these
documents submitted to us as copies.
We have not undertaken any independent investigation to
determine facts bearing on this opinion, and no inference as to
the best of our knowledge of facts based on an independent
investigation should be drawn from this representation. Further,
our opinions, as hereinafter expressed, are subject to the
following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, arrangement, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and
remedies of creditors; and (ii) the effect of general principles
of equity whether enforcement is considered in a proceeding in
equity or at law and the discretion of the court before which any
proceeding therefore may be brought.
We are admitted to the practice of law only in the State of
Illinois and, accordingly, we do not purport to be experts on the
laws of any other jurisdiction nor do we express an opinion as to
the laws of jurisdictions other than the laws of the State of
Illinois and the General Corporation Law of the State of
Delaware, as currently in effect.
On the basis of, and in reliance upon, the foregoing, and
subject to the qualifications contained herein, we are of the
opinion that the Shares are validly issued, fully-paid and
nonassessable.
We hereby consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm
contained under the heading "Legal Matters."
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This
opinion may not be relied upon by you for any other purpose or
furnished, or quoted to, or relied upon by any other person, firm
or corporation for any purpose without our prior express written
consent.
Respectfully submitted,
SHEFSKY FROELICH & DEVINE LTD.
SF&D/dok
<PAGE>
EXHIBIT 23.1
[Letterhead of Arthur Andersen LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated February 20, 1995 included in Continental Waste
Industries, Inc.'s Form 10-KSB for the year ended December 31,
1994 and to all references to our firm included in or made a part
of this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
December 13, 1995
