CONTINENTAL WASTE INDUSTRIES, INC.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
A Special Meeting of Stockholders of Continental Waste Industries,
Inc. (the "Company") will be held on December 28, 1995, at 10:00 a.m.
(E.S.T.), at the executive offices of Continental Waste Industries,
Inc., 67 Walnut Avenue, Suite 103, Clark, New Jersey 07066, for the
following purposes:
1. To consider and vote on a proposal to adopt the 1995 Outside
Director Stock Option Plan;
2. Consider and vote on a proposal to amend Article Fourth,
Clause (a) of the Company's Articles of Incorporation to increase the
number of shares of common stock par value $.001 authorized for issuance
by the Company from 10,000,000 to 20,000,000 shares; and
3. Consider and vote on a proposal to, subject to approval of Proposal
No. 2, amend Article Fourth, Clause (a) of the Company's Articles of
Incorporation to increase the number of common stock, authorized for
issuance by the Company from 20,000,000 to 40,000,000 shares and to reduce
the par value of the Company's common stock from $.001 per share to $.0005
per share to effect a two-for-one split in the Company's issued common
stock.
Only stockholders of record at the close of business on December 4,
1995, will be entitled to notice of and to vote at the meeting and any
adjournments thereof. A list of such stockholders will be open for
examination by any stockholder for any purpose germane to the meeting,
during ordinary business hours, for ten days prior to the meeting at the
offices of the Company, 67 Walnut Ave., Suite 103, Clark, New Jersey
07066.
Whether or not you expect to attend the meeting, it is important
that your shares be represented, regardless of the number of shares you
hold. Accordingly, you are encouraged to sign, date and return the
enclosed proxy form in the reply envelope provided as soon as possible.
By Order of the Board of Directors,
Michael J. Drury
Senior Vice President and
Chief Financial Officer
December 5, 1995
CONTINENTAL WASTE INDUSTRIES, INC.
PROXY STATEMENT
This proxy statement, which is first being mailed to stockholders
on or about December 8, 1995, is furnished in connection with the
solicitation of proxies on behalf of the Board of Directors of
Continental Waste Industries, Inc. (the "Company"), 67 Walnut Ave.,
Suite 103, Clark, New Jersey 07066, for use at a Special Meeting of
Stockholders to be held at 10:00 a.m. on December 28, 1995, and for
all adjournments thereof (the "Special Meeting"), at Continental Waste
Industries, Inc., 67 Walnut Avenue, Suite 103, Clark, New Jersey 07066.
Only stockholders of record at the close of business on December 4,
1995, the record date for the Special Meeting, will be entitled to
notice of and to vote at the Special Meeting. As of the record date,
8,371,843 shares of the Company's Common Stock, par value $.001 per
share (the "Shares") were outstanding and entitled to vote at the
Special Meeting. Each Share is entitled to one vote. There are no
cumulative voting rights. Copies of this proxy statement, the attached
notice and the enclosed form of proxy were first sent to stockholders on
or about December 8, 1995.
Stockholders are encouraged to specify the way they wish to vote
their shares by marking the appropriate boxes on the enclosed proxy.
Shares represented by proxies that are properly executed and returned
will be voted as specified on the proxy. If no choice is specified on
an otherwise properly executed proxy, the shares will be voted FOR
Proposals 1, 2 and 3 described in this Proxy Statement. Shares not
represented by a properly executed proxy will not be voted. A
stockholder may revoke a proxy at any time before it is actually voted
by delivering written notice of revocation to the Secretary of the
Company, by delivering a properly executed proxy bearing a later date,
or by attending the meeting and voting in person.
The Board of Directors does not intend to present any matters for
a vote at the meeting except the proposals described in this Proxy
Statement. The persons named in the proxy will, however, have
discretionary voting authority regarding any other business that may
properly come before the meeting. The presence of a majority of the
outstanding shares of Common Stock, represented in person or by proxy at
the Special Meeting will constitute a quorum. Proxies marked as
absentions, and broker non-votes (where a nominee holding shares for a
beneficial owner has not received voting instructions from the
beneficial owner with respect to a particular matter and the nominee
does not possess or choose to exercise discretionary authority with
respect thereto) will be considered as present at the meeting but not
entitled to vote with respect to the particular matter and will
therefore have no effect on the vote.
The expense of preparing, printing and mailing this Proxy
Statement and the related proxy solicitation will be paid by the
Company. Proxies are being solicited principally by mail; but proxies
may also be solicited personally, by telephone and similar means by
directors, officers and regular employees of the Company without
additional compensation. The Company may retain the services of a proxy
solicitor to assist in the solicitation of proxies at a fee payable by
the Company of $5,000 plus out-of-pocket expenses. The Company will
reimburse brokerage firms and others for their expenses in forwarding
proxy solicitation materials to the beneficial owners of Common Stock.
MATTERS TO BE CONSIDERED BY STOCKHOLDERS
PROPOSAL NO. 1
APPROVAL OF THE CONTINENTAL WASTE 1995
OUTSIDE DIRECTOR STOCK OPTION PLAN
Subject to the approval of the Company's stockholders, the
Company's board of directors (the "Board" or the "Directors"), has
authorized adoption of the Continental Waste 1995 Outside Director Stock
Option Plan (the "Plan"). Stockholder approval of the Plan is sought to
qualify: (i) the shares purchased under the Plan for quotation on the
Nasdaq National Market; and (ii) the Plan under Rule 16b-3 of the
Securities Exchange Act of 1934 as amended (the "Exchange Act"), and
thereby render certain transactions by the recipients of options under
the Plan exempt from certain provisions of Section 16 of the Exchange
Act.
The following is a brief summary of the Plan and is qualified in
its entirety by reference to the full text of the Plan which is set
forth in the attached Exhibit "A".
General
The Plan grants the Board of Directors authority to issue options
to purchase up to 100,000 shares of the Company's Common Stock (the
"Shares") and any other stock or security resulting from adjustments or
substitutions as described in the Plan. The Shares are reserved and
available for purchase upon the exercise of options granted under the
Plan.
Administration
The Plan will be administered by the Board provided, however, that
the Board will not have any discretion with respect to the selection of
directors to receive options, the number of Shares subject to any such
options, the purchase price thereunder or the timing of grants or
options under the Plan.
Option Grants
Only Directors of the Company who are not employees of the Company
or its affiliates (the "Outside Directors") are eligible to receive
grants of options under the Plan. As of December 7, 1995, there were
three Outside Directors. Options are granted under the Plan pursuant to
a formula, as described below, which sets forth, among other things, the
manner in which options will be granted, the number of Shares subject to
options, the time and manner of payment for options, and the conditions
of exercise and term of options, the exercise price of such options
(which shall be 100% of the fair market value of the Common Stock on the
date the option is granted).
Termination of Service as Eligible Director
The Plan provides that, in the event that an Outside Director of
the Company who has been eligible to receive options under the Plan (an
"Eligible Director") shall no longer qualify as an Eligible Director,
all outstanding options shall be exercisable in whole or in part for a
period of one year from the date upon which such person ceases to be an
Eligible Director.
Grants, Terms and Conditions of Options
The Plan provides for both annual option grants and elective
option grants to Eligible Directors. Each Eligible Director will
automatically receive an annual grant of an option to purchase 5,000
Shares. The annual grants will be made on the third business day
following the annual meeting of stockholders. In addition, each
Eligible Director may, beginning with the 1996 annual term, elect to
receive all or any portion of the annual retainer payable to the
directors (currently $10,000) in the form of an option to purchase
Shares. The exercise price for all options awarded under the Plan will
be equal to 100% of the fair market value per share of the Common Stock
on the date the option is granted. Fair market value is the average of
the highest and lowest per share sales price on the Nasdaq National
Market System for the five (5) trading days immediately proceeding the
date of grant. Options may be exercised only upon payment of the
exercise price thereof in full and shall be exercisable until ten (10)
years from the date of the grant, or for one year if a recipient of such
options ceases to be an Eligible Director.
Effective Date and Duration of the Plan
The Plan shall become effective upon approval by the Stockholders
and shall terminate, unless extended by the Board, on December 31, 2005;
provided that the Plan may be terminated if Shares are not available for
issuance hereunder.
Securities Laws Matters
It is the intent of the Company that the Plan comply in all
respects with applicable provisions of Rule 16b-3 under the Exchange
Act, so that any grant of options to or other transaction by an optionee
who is subject to the reporting requirements of Section 16(a) of the
Exchange Act not result in short-swing profits liability under Section
16(b) (except for any transaction exempted under alternative Exchange
Act rules or intended by such optionee to be a non-exempt transaction).
Accordingly, if any provision of this Plan or any agreement relating to
an option does not comply with such requirements of Rule 16b-3 as then
applicable to any such transaction so that such an optionee would be
subject to Section 16(b) liability, such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements,
and the optionee shall be deemed to have consented to such construction
or amendment.
Options are not transferrable except by will or by the laws of
descent and distribution, and are exercisable during an optionee's
lifetime only by the optionee or the appointed guardian or legal
representative of the optionee. Upon the: (a) death or permanent and
total disability of an optionee; or (b) retirement in accord with the
Company's retirement practices, then any unexercised options to acquire
Shares will be exercisable at any time within one year in the case of
(a) and 90 days in the case of (b) (but in no case be on the expiration
date specified in the Option Agreement applicable to the optionee). If,
while unexercised options remain outstanding under the Plan, the Company
ceases to be a publicly-traded company, or if the Company merges with
another entity or a similar event occurs, all options outstanding under
the Plan will become immediately exercisable at that time.
If the Company declares a stock dividend, splits its stock,
combines or exchanges its Shares, or engages in any other transactions
which result in a change in capital structure such as a merger,
consolidation, dissolution, liquidation or similar transaction, the
Board (excluding the Eligible Directors) may adjust or substitute, as
the case may be, the number of Shares available for options under the
Plan, the number of Shares covered by outstanding options, the exercise
price per Share of outstanding options and any other characteristic of
the options as the Board (exclusive of the Eligible Directors) deems
necessary to equitably reflect the effects of those changes on the
option holders.
ERISA
The Plan is not subject to any provision of ERISA and is not
qualified under Section 401(a) of the Code, relating to pension plans
and certain other deferred compensation plans.
Federal Income Tax Consequences
The following summary of tax consequences is not comprehensive and
is based on laws and regulations in effect on November 23, 1995. These
laws and regulations are subject to change.
The grant of an option under the Plan is not a taxable event, and
the Company is not entitled to a deduction upon such grant. Upon
exercise of an option, participants will be taxed at ordinary income
rates on the difference between the exercise price of the option and the
fair market value of the Shares issued thereunder. In determining the
amount of the difference, the fair market value will be determined on
the latter of the date of exercise and the date which is six months and
one day after the date on which the option is granted, unless the
participant elects to be taxed based on the fair market value at the
date of exercise. The Company will receive a corresponding deduction
for the amount of income recognized by a participant upon exercise of an
option. Any gain or loss realized upon the subsequent sale of the
Shares issued upon exercise of the option (measured by the difference
between the fair market value determined or utilized by the optionee as
described above) and the sale price will be taxed at either long-term or
short-term capital gain (or loss) rates, depending on the selling
stockholder's holding period. The subsequent sale would have no tax
consequences for the Company. Options granted under the Plan are not
qualified as incentive stock options, as that term is defined in Section
422 of the Internal Revenue Code of 1986, as amended, which means that
the Company will receive a deduction for the amount of income recognized
by a participant in the same year that the participant recognizes income
in connection with the exercise of an option.
Cashless Exercise Price
An Eligible Director pays the exercise price of an option in
whole or in part by the surrender of Shares he or she already owns.
Approval of the Plan requires the affirmative vote in person
or by proxy of the holders of a majority of the Company's outstanding
shares of common stock entitled to vote at a Special Meeting. All
proxies received by the Board will be voted in favor of approval of the
Plan if no direction to the Board is given. The Board recommends a vote
FOR APPROVAL OF THE PLAN.
PROPOSAL NO. 2
AMENDMENT TO ARTICLES OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
FROM 10,000,000 TO 20,000,000
The Board has unanimously adopted resolutions approving, and
authorizing management to take the actions necessary to submit to a vote
of the stockholders, an amendment to the first sentence of Article Four,
Clause (a) of the Company's Certificate of Incorporation (the
"Certificate") to increase the number of the Company's authorized shares
of common stock, each having a par value of $.001 (the "Common Stock"),
from 10,000,000 to 20,000,000 (the "Amendment"). The relative rights
and limitations of and on the Common Stock will remain unchanged under
the Amendment. The text of the first sentence of Article Fourth, Clause
(a), as proposed to be amended, is attached hereto as Exhibit B. At
December 5, 1995, there were 8,418,358 shares of Common Stock
issued and outstanding, leaving 1,581,642 authorized but unissued (the
"Authorized Shares") shares of Common Stock available for other
corporate purposes or opportunities.
The Board believes that the number of Authorized Shares available
for issuance would likely be insufficient for corporate purposes or
opportunities that may arise, including potential business acquisitions,
recapitalizations, the exercise of options and warrants and future
private or public issuances of Common Stock. The Board, therefore,
believes that it is desirable to seek stockholder authorization at the
Special Meeting to amend the Certificate to increase the authorized
shares of Common Stock to 20,000,000. With this increase, the Board
believes that the Company will have sufficient shares of Common Stock
available for corporate purposes or opportunities as are likely to arise
in the reasonably foreseeable future.
There are at present no firm plans, arrangements or understandings
relating to the issuance of any of the Authorized Shares or the
additional shares of the common stock proposed to be authorized (the
"Additional Shares"). If the Amendment is approved, the Additional
Shares, as well as the Authorized Shares, would be available for
issuance and enable the Company to pursue corporate opportunities. The
Board has the power with respect to the Authorized Shares, and will have
the power with respect to the Additional Shares, to issue some or all of
the Authorized and Additional Shares without further stockholder
approval except as may be required by law or regulations or by the rules
of any stock exchange on which the Company's securities may then be
listed.
The issuance of additional shares of Common Stock would, among
other things, have a dilutive effect on earnings per share and on the
equity and voting power of current stockholders. The Common Stock does
not grant the stockholders any preemptive rights. Under applicable
Delaware law, the holders of the Common Stock are generally entitled to
vote on any proposed amendment to the Certificate or other corporate
action, such as merger, which would effect an exchange or
reclassification of all or a portion of a class of stock, increase or
decrease the aggregate number of authorized shares of the class, or
otherwise affect the preferences or relative rights of the class.
The issuance of the Additional Shares, as well as the Authorized
Shares, may, under certain circumstances, make attempts to acquire
control of the Company more difficult. For example, an issuance of
additional shares may make it more difficult to obtain stockholder
approval of actions such as removal of directors or amendments to the
Bylaws. The increase in authorized shares of Common Stock, however, has
not been proposed as an antitakeover device and the Board and management
have no knowledge of any current efforts to obtain control of the
Company or to effect large accumulations of its Common Stock.
A vote "FOR" this proposal will authorize adoption of the
Amendment set forth in Exhibit B (overstriking designates deleting, and
underscoring designates additional of language). The Board recommends
adoption of the Amendment to increase the number of the Company's
authorized shares of Common Stock from 10,000,000 to 20,000,000.
The aggregate number of shares which the
Corporation shall be authorized to issue: (a)
[10,000,000] 20,000,000 shares of common
stock, $.001 par value ("Common") and (b)
(1) 425,200 shares of Series Preferred Stock,
$5.64 par value ("Series A Preferred"),
(2) 119,000 shares of Series B Preferred
Stock, $20.00 par value ("Series B Preferred")
and (3) 100,000 additional shares of
Preferred Stock $.001 par value (the "Blank
Check Preferred"), for an aggregate total of
644,200 shares of preferred stock.
PROPOSAL NO. 3
SUBJECT TO APPROVAL OF PROPOSAL NO. 1 FURTHER AMENDMENT
TO THE ARTICLES OF INCORPORATION TO INCREASE THE NUMBER OF THE
COMPANY'S AUTHORIZED SHARES OF COMMON STOCK, FROM 20,000,000 TO
40,000,000 AND TO REDUCE THE PAR VALUE OF THE SHARES OF COMMON
STOCK FROM $.001 TO $.0005 PER SHARE TO EFFECT A TWO-FOR-ONE
SPLIT IN THE COMPANY'S ISSUED COMMON STOCK.
The Board recommends that the stockholders approve a proposal,
subject to approval by the stockholders of Proposal No. 2, to
further amend Article Fourth, Clause (a) of the Company's Articles
of Incorporation to increase the number of the Company's authorized
shares of Common Stock from 20,000,000 to 40,000,000. The Board has
decided to split the Company's shares of Common Stock (subject to
approval of this proposal) on a two-for-one basis and consequently
reduce the par value of each share as a result of the split from $.001
to $.0005. The Board has decided to split the Common Stock because it
believes that the increase in the number of outstanding shares of the
Common Stock resulting from the split will likely result in the market
price of the Common Stock moving into a range that is more accessible
to many investors, particularly individuals, and therefore a broader
market for the shares of Common Stock.
If approved by the stockholders, and assuming that any regulatory
approvals are obtained, the increase in the number of authorized shares
of Common Stock would be effected by filing the amendment to the
Certificate. The Board has established a record date of December 15, 1995
for the split (the "Split Record Date"). All holders of record on the
Split Record Date will become the owner of one additional share of Common
Stock for each share of Common Stock held by the holder on the Split
Record Date. (The number of shares of preferred stock authorized and
issued will remain unchanged.) All Common Stock certificates outstanding
on the Split Record Date will be deemed without further action to
represent the same number of shares of Common Stock as they represented
prior to the split except that the par value will be reduced to $.0005
per share. Stockholders will not be required to return their existing
certificates to the Company or its transfer agent. Instead, stockholders
will retain their certificates and receive a new certificate for each
additional share issuable as a result of the split. Certificates
representing such additional shares will be mailed to stockholders on or
about December 28, 1995 (assuming approval of this Proposal No. 3).
The split will not change the aggregate amount of the Company's
stated capital or surplus accounts, affect the proportionate interest
of any common stockholder. The split will not change the powers,
preferences or rights of any class of the Company's shares of preferred
stock.
The Company believes that (a) the split will not result in any gain
or loss to stockholders for federal income tax purposes, (b) the basis
of the Common Stock held by a stockholder after the split will be equal
to the basis of the Common Stock held before the split and (c) the
holding period of the Common Stock held after the stock split will
include the period for which the Common Stock, held before the split
was held, provided that the Common Stock, was held as a capital asset
at the time of the split.
A vote "FOR" this proposal will authorize the Board, in its
discretion, to adopt the amendment set forth in Exhibit C ("Amendment
No. 2") (overstriking designates deleting, and underscoring designates
additional of language). The Board recommends that, subject to the
approval of Proposal No. 2, the stockholders adopt Amendment No. 2 to
increase the number of the Company's authorized shares of Common Stock
from 20,000,000 to 40,000,000 and to reduce the par value of the shares
of Common Stock from $.001 per share to $.0005 per share to effect a
two-for-one split of the Company's Common Stock.
The aggregate number of shares which the Corporation
shall be authorized to issue: (a) [20,000,000]
40,000,000 shares of common stock, $.0005 par
value ("Common") and (b) (1) 425,200 shares of Series
Preferred Stock, $5.64 par value ("Series A Preferred"),
(2) 119, shares of Series B Preferred Stock, $20.00 par
value ("Series B Preferred") and (3) 100,000
additional shares of Preferred Stock $.001 par value
(the "Blank Check Preferred"), for an aggregate total
of 644,200 shares of preferred stock.
ADDITIONAL INFORMATION
Additional information regarding the Company, its business, its
stock, and its financial condition are included in the Company's Form
10-KSB for its fiscal year ended December 31, 1994, its quarterly
reports on Form 10-QSB for the quarters ending March 31, June 30 and
September 31, 1995, its Registration on Form SB-2, together with the
offering prospectus, dated October 3, 1995, and its Form 8-K current
report dated October 27, 1995, all as filed with the Securities and
Exchange Commission, will be provided to stockholders without charge
upon receipt of a written request to: Investor Relations, Continental
Waste Industries, Inc., 67 Walnut Avenue, Suite 103, Clark, New Jersey
07066, and the information in said reports is incorporated by reference
into this Proxy Statement.
OTHER MATTERS
As of the date of this Proxy Statement, no other business other than
that discussed above is to be acted upon at the annual meeting. If
other matters not known to the Board of Directors should, however,
properly come before the annual meeting, the persons appointed by the
signed proxy intend to vote it in accordance with their best judgment.
By the order of the Board of Directors
Thomas A. Volini
Chairman of the Board and & Chief Operating Officer
December 5, 1995
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ X ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to paragraph 240.14a-11(c) or
paragraph 240.14a-12
Continental Waste Industries, Inc.
(Name of Registrant as Specified in Its Charter)
Michael J. Drury
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[ X ] $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-
6(i)(2).
[ ] $500 per each party to the controversy pursuant to Exchange Act
Rule 14a-6(i)(3).
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
1) Title of each class of securities to which transaction
applies:
_____________________________________________________
2) Aggregate number of securities to which transaction applies:
___________________________________________________
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:
_____________________________________________________
4) Proposed maximum aggregate value of transaction:
_____________________________________________________
Set forth the amount on which the filing fee is calculated and state how
it was determined.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid: ___________________
2) Form, Schedule or Registration Statement No.: _________
3) Filing Party: _________________________________________
4) Dated Filed: __________________________________________
EXHIBIT A
CONTINENTAL WASTE INDUSTRIES, INC.
1995 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
1. Purpose
The purpose of the Continental Waste Industries, Inc. 1995
Stock Option Plan for Outside Directors (the "Plan") is to promote the
interests of Continental Waste Industries, Inc. (the "Company") and its
stockholders by increasing the proprietary and vested interest of non-
employee directors in the growth and performance of the Company by
granting such directors options to purchase shares of the Common Stock,
par value $.01 per share (the "Shares"), of the Company.
2. Administration
The Plan shall be administered by the Company's Board of
Directors (the "Board"). Subject to the provisions of the Plan, the
Board shall be authorized to interpret the Plan, to establish, amend,
and rescind any rules and regulations relating to the Plan and to make
all other determinations necessary or advisable for the administration
of the Plan; provided, however, that the Board shall have no discretion
with respect to the selection of outside directors to receive options,
the number of Shares subject to any such options, the purchase price
thereunder or the timing of grants of options under the Plan. The
determinations of the Board in the administration of the Plan, as
described herein, shall be final and conclusive. The Secretary of the
Company shall be authorized to implement the Plan in accordance with its
terms and to take such actions of a ministerial nature as shall be
necessary to effectuate the intent and purposes thereof. The validity,
construction and effect of the Plan and any rules and regulations
relating to the Plan shall be determined in accordance with the laws of
the State of Delaware.
3. Eligibility
The class of individuals eligible to receive grants of
options under the Plan shall be directors of the Company who are not
employees of the Company or its affiliates ("Eligible Directors"). Any
holder of an option granted hereunder shall hereinafter be referred to
as a "Participant".
4. Shares Subject to the Plan
Subject to adjustment as provided in Section 6, an aggregate
of 100,000 Shares shall be available for issuance upon the exercise of
options granted under the Plan. The Shares deliverable upon the
exercise of options may be made available from authorized but unissued
Shares or treasury Shares. If any option granted under the Plan shall
be cancelled by mutual consent or terminated for any reason without
having been exercised, the Shares subject to, but not delivered under,
such option shall be available for other options. If any option granted
under the Plan is exercised through the delivery of Shares, the number
of Shares available for issuance upon the exercise of options shall be
increased by the number of Shares surrendered, to the extent permissible
under Rule 16b-3.
5. Grant, Terms and Conditions of Options
(a) Initial Options. Upon approval of the Plan by the
stockholders of the Company, each Eligible Director will automatically
be granted an option hereunder to purchase 5,000 Shares.
(b) New Director Options. Upon first election to the Board,
each newly elected Eligible Director will be granted an option to
purchase 5,000 shares.
(c) Annual Options. On the third business day following the
date of each Annual Meeting of Stockholders of the Company, commencing
with the first annual meeting following December 31, 1995, each Eligible
Director, other than an Eligible Director first elected to the Board
within the 12 months immediately preceding such meeting, will
automatically and without any further action by the Board be granted an
option to purchase 5,000 Shares. If the number of Shares then remaining
available for the grant of options under the Plan is not sufficient for
each Eligible Director to be granted an option for 5,000 Shares (or the
number of adjusted Shares pursuant to Section 6), then each Eligible
Director shall be granted an option for a number of whole Shares equal
to the number of Shares then remaining available divided by the number
of Eligible Directors, disregarding any fractional Shares.
(d) Elective Options. Beginning with the 1996 annual term, each
Eligible Director may make an election to receive all or any portion of
his or her annual retainer for the current year in the form of stock
options (the "Elective Option"). An election must specify the amount of
the retainer to be paid in the form of an Elective Option, and must be
delivered to the Company not less than 15 days prior to the due date of
any portion of his or her annual retainer, as to the portion of the
annual retainer then due. Each such election, once made, shall be
irrevocable. The Elective Option will be granted automatically on the
first business day occurring one month after the last day on which the
election could have been made. If a Director ceases to be a Director
after the date the election is due but prior to the date upon which the
Elective Option is granted, the Elective Option to such individual will
not be granted and any retainer will be paid in cash. The number of
Shares issuable upon exercise of each Elective Option shall be equal to
the amount of the Eligible Director's annual retainer to be received in
the form of the Elective Option divided by the Fair Market Value
(defined herein) per Share on the date of grant.
(e) Options Nonstatutory. The options granted will be
nonstatutory stock options not intended to qualify under Section 422 or
423 of the Internal Revenue Code of 1986, as amended (the "Code") and
shall have the following terms and conditions:
(i) Price. The purchase price per Share
deliverable upon the exercise of each option shall be 100% of the Fair
Market Value per Share on the date the option is granted. For purposes
of this Plan, Fair Market Value shall be the average of the highest and
lowest per Share sales prices on the NASDAQ National Market System for
the five (5) trading days immediately preceding the date of grant, or
the particular date in question, as the case may be, in each case as
reported by NASDAQ.
(ii) Payment. Options may be exercised only upon
payment of the purchase price thereof in full. Such payment shall be
made in cash or, unless otherwise determined by the Board, in Shares
(provided that such Shares have not been held for less than six months),
which shall have a Fair Market Value (determined in accordance with the
rules of paragraph (i) above) at least equal to the aggregate exercise
price of the Shares being purchased, or a combination of cash and
Shares.
(ii) Exercisability and Term of Options. Options
shall be exercisable, in whole or in part, at all times during the
period beginning on the first anniversary of the date of grant until the
earliest of (x) ten years from the date of grant, or (y) the expiration
of the one year period provided in paragraph (iv) below.
(iv) Termination of Service as Eligible Director. If
a Participant who remains a director shall no longer qualify as an
Eligible Director as herein defined, all outstanding options previously
granted to that individual shall be exercisable in whole or in part for
a period of one year from the date upon which such Participant ceases to
be an Eligible Director, provided that in no event shall the options be
exercisable beyond the period provided for in paragraph (iii) above.
(v) Nontransferability of Options. No option
may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise than by will or the
laws of descent and distribution, and during the lifetime of the
Participant to whom an option is granted it may be exercised only by the
Participant or by the Participant's guardian or legal representative.
(vi) Listing and Registration. Each option shall
be subject to the requirement that if at any time the Board shall
determine, in its discretion, the listing, registration, qualification
of the Shares subject to option upon any securities exchange or under
any state or federal law, or the consent or approval of any governmental
regulatory body is necessary or desirable as a condition of or in
connection with, the granting of such option or the issue or purchase of
Shares thereunder, no such option may be exercised in whole or in part
unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any condition not
acceptable to the Board.
(vii) Option Agreement. Each option granted hereunder
shall be evidenced by an agreement with the Company which shall contain
the terms and provisions set forth herein and shall otherwise be
consistent with the provisions of the Plan.
6. Adjustment of and Changes in Shares
If a dividend or other distribution shall be declared upon
the Shares of the Company payable in Shares, the number of Shares set
forth in Section 5, the number of Shares then subject to any outstanding
stock options under the Plan and the number of Shares which may be
issued under the Plan but are not then subject to outstanding stock
options on the date fixed for determining the stockholders entitled to
receive such stock dividend or distribution shall be adjusted by adding
thereto the number of Shares which would have been distributable thereon
if such Shares had been outstanding on such date.
If the outstanding Shares of the Company shall be changed
into or exchangeable for a different number or kind of shares of stock
or other securities of the Company or another corporation, whether
through reorganization, reclassification, recapitalization, stock split-
up, combination of shares, merger or consolidation, then there shall be
substituted for each Share set forth in Section 5, for each Share
subject to any then outstanding stock option pursuant to the Plan and
for each Share which may be issued under the Plan but which is not then
subject to any outstanding stock option, the number and kind of shares
of stock or other securities into which each outstanding Share shall be
so changed or for which each such Share shall be exchangeable.
In case of any adjustment or substitution as provided for in
the first two paragraphs of this Section 6, the aggregate option price
for all Shares subject to each then outstanding stock option prior to
such adjustment or substitution shall be the aggregate option price for
all shares of stock or other securities (including any fraction) to
which such Shares shall have been adjusted or which shall have been
substituted for such shares.
No adjustment or substitution provided for in this Section 6
shall require the Company to issue or sell a fraction of a share or
other security. Accordingly, all fractional shares or other securities
which result from any adjustment or substitution shall be eliminated and
not carried forward to any subsequent adjustment or substitution.
Except as provided in this Section 6, a grantee shall have
no rights by reason of any issue by the Company of stock of any class or
securities convertible into stock of any class, any subdivision or
consolidation of shares of stock of any class, the payment of any stock
dividend or any other increase or decrease in the number of shares of
stock of any class.
7. No Rights of Stockholders
Neither a Participant nor a Participant's legal
representative shall be, or have any of the rights and privileges of, a
stockholder of the Company in respect of any Shares purchasable upon the
exercise of any option, in whole or in part, unless and until
certificates for such Shares shall have been validly issued.
8. Change in Control
Upon a change in Control, all option rights that would
become exercisable through the Company's next annual stockholders'
meeting following a Change in Control will become immediately
exercisable in full. If any event or series of events constituting a
Change in Control is abandoned, the effect thereof will be null and the
exercisability of option rights will be governed by the provisions of
the Plan described above. For purposes of the Plan, a "Change in
Control" shall mean the occurrence of any of the following events: (i)
execution by the Company of an agreement for the merger, consolidation
or reorganization into or with another corporation or other person,
unless as a result of such transaction not less than a majority of the
combined voting power of the then-outstanding securities of such
corporation or person immediately after such transaction are held in the
aggregate by the holders of securities entitled to vote generally in the
election of directors of the Company ("Voting Securities") immediately
prior to such transaction; (ii) execution by the Company of an
agreement for the sale or other transfer of all or substantially all of
its assets to another corporation or person, unless as a result of such
transaction not less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction is held in the aggregate by the
holders of Voting Securities of the Company immediately prior to such
transaction; or (iii) the Company adopts a plan for the liquidation or
dissolution of the Company other than pursuant to a merger,
consolidation or reorganization which would not constitute a Change in
Control, as described in clause (i) above.
Notwithstanding the foregoing, to the extent necessary for
an option right, its exercise or the sale of the Common Stock acquired
thereunder to be exempt from Section 16(b) of the Exchange Act, except
in the case of death or disability, an optionee will not be entitled to
exercise any option right granted within six months prior to the
occurrence of a Change in Control until six months after the grant of
such option right or until at least six months has elapsed from the
grant of such option right until the sale of the Common Stock acquired
upon its exercise.
9. Plan Amendments
The Plan may be amended by the Board, as it shall deem
advisable or to conform to any change in any law or regulation
applicable thereto; provided, that the Board may not, without the
authorization and approval of stockholders of the Company; (i) increase
the number of Shares which may be purchased pursuant to options
hereunder, either individually or in the aggregate, except as permitted
by Section 6, (ii) change the requirement of Section 5(d) that option
grants be priced at Fair Market Value, except as permitted by Section 6,
(iii) modify in any respect the class of individuals who constitute
Eligible Directors or (iv) materially increase the benefits accruing to
Participants hereunder. The provisions of Sections 3 and/or 5 may not
be amended more often than once every six months, other than to comport
with changes in the Code, the Employee Retirement Income Security Act
("ERISA"), or the rules under either such statute.
10. Effective Date and Duration of Plan
The Plan shall become effective on the day of the Company's
Annual Stockholders Meeting at which the Plan is approved by
Stockholders. The Plan shall terminate on December 31, 2004, unless the
Plan is extended or terminated at an earlier date by Stockholders or is
terminated by exhaustion of the Shares available for issuance hereunder.
11. Securities Law Matters
As a condition of receiving Option Rights the Company may
require an optionee to give written assurances that the optionee is
acquiring the Common Stock subject to the Option Right for investment
and with no present intent to sell or distribute such Common Stock and
covering any other matters deemed necessary or appropriate by the
Company to comply with federal or state securities laws. No Option
Right may be accepted or exercised until any required governmental
registration, qualification, consent or approval is obtained as
specified in the Plan.
It is the intent of the Company that the Plan shall comply
in all respects with applicable provisions of Rule 16b-3 under the
Securities Exchange Act of 1934 ("Exchange Act"), so that any grant of
options to or other transaction by an optionee who is subject to the
reporting requirements of Section 16(a) of the Exchange Act shall not
result in short-swing profits liability under Section 16(b) (except for
any transaction exempted under alternative Exchange Act rules or
intended by such optionee to be a non-exempt transaction). Accordingly,
if any provision of this Plan or any agreement relating to an option
does not comply with such requirements of Rule 16b-3 as then applicable
to any such transaction so that such an optionee would be subject to
Section 16(b) liability, such provision shall be construed or deemed
amended to the extent necessary to conform to such requirements, and the
optionee shall be deemed to have consented to such construction or
amendment.
12. ERISA
The Plan is not subject to any provision of ERISA and is not
qualified under Section 401(a) of the Code, relating to pension plans
and certain other deferred compensation plans.
EXHIBIT B
Certificate of Amendment to the
Certificate of Incorporation
of
Continental Waste Industries, Inc.
Continental Waste Industries, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State
of Delaware (the "Company"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Company's Board of Directors,
resolutions were duly adopted setting forth a proposed amendment of the
Company's Certificate of Incorporation (the "Certificate"), declaring
the proposed amendment to be advisable and calling a meeting of the
Company's stockholders for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate be amended by changing
the first sentence of Article Fourth, Clause (a) so
that, as amended, the sentence shall be and read as follows:
The aggregate number of shares which the Company shall be
authorized to issue: (a) 20,000,000 shares of common stock, $.001 par
value ("Common") and (b) (1) 425,200 shares of Series Preferred Stock,
$5.64 par value ("Series A Preferred"), (2) 119,000 shares of Series B
Preferred Stock, $20.00 par value ("Series B Preferred") and (3) 100,000
additional shares of Preferred Stock $.001 par value (the "Blank Check
Preferred"), for an aggregate total of 644,200 shares of preferred
stock.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of the Company was duly
called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware and Section 2.3 of the
Company's Bylaws, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed by Carlos E. Aguero, its President, and Jeffrey E. Levine, its
Senior Vice President, this ______ day of _________________, 1995.
By: ______________________________
President
Attest: ____________________________
Senior Vice President
EXHIBIT C
Certificate of Amendment to the
Certificate of Incorporation
of
Continental Waste Industries, Inc.
Continental Waste Industries, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State
of Delaware (the "Company"),
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Company's Board of Directors,
resolutions were duly adopted setting forth a proposed amendment of the
Company's Certificate of Incorporation (the "Certificate"), declaring
the proposed amendment to be advisable and calling a meeting of the
Company's stockholders for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate be amended by changing
the first sentence of Article Fourth, Clause (a) so
that, as amended, the sentence shall be and read as follows:
The aggregate number of shares which the Company shall be
authorized to issue: (a) 40,000,000 shares of common stock, $.0005 par
value ("Common") and (b) (1) 425,200 shares of Series Preferred Stock,
$5.64 par value ("Series A Preferred"), (2) 119,000 shares of Series B
Preferred Stock, $20.00 par value ("Series B Preferred") and (3) 100,000
additional shares of Preferred Stock $.001 par value (the "Blank Check
Preferred"), for an aggregate total of 644,200 shares of preferred
stock.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of the Company was duly
called and held, upon notice in accordance with Section 222 of the
General Corporation Law of the State of Delaware and Section 2.3 of the
Company's Bylaws, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed by Carlos E. Aguero, its President, and Jeffrey E. Levine, its
Senior Vice President, this _______ day of _________________, 1995.
By:______________________________
President
Attest:__________________________
Senior Vice President
CONTINENTAL WASTE INDUSTRIES, INC.
67 Walnut Avenue
Suite 103
Clark, New Jersey 07066
This Proxy is solicited on behalf of the Board of Directors
The undersigned hereby appoints Carlos E. Aguero and Jeffrey E. Levine,
and each of them, as Proxies, with the power to appoint their
substitutes, and hereby authorizes them to represent and to vote, as
designated below, all the Common Stock of the Corporation of Continental
Waste Industries, Inc. (the "Corporation") held of record by the
undersigned on December 4, 1995 at the Special Meeting of
Stockholders when convened on December 28, 1995, or any adjournment
thereof.
This proxy, when properly executed will be voted in the manner directed
herein by the undersigned stockholder. If no direction is made, this
proxy will be voted FOR Proposals 1, 2 and 3.
Continued on the reverse side.
_X_ Please mark your vote
as in this example.
For Against Abstain
1. PROPOSAL to adopt the 1995
Outside Director Stock Option Plan. ___ ___ ___
2. PROPOSAL to amend Article Fourth,
Clause (a) of the Company's
Articles of Incorporation to
increase the number of shares of
Common Stock, par value $.001
(the "Common Stock"), authorized For Against Abstain
for issuance by the Company from
10,000,000 to 20,000,000 shares. ___ ___ ___
3. SUBJECT TO APPROVAL OF PROPOSAL
NO. 2, PROPOSAL to further amend
Article Fourth, Clause (a) of
the Company's Articles of
Incorporation to increase the
number of shares of Common Stock,
(the "Common Stock"), authorized
for issuance by the Company from
20,000,000 to 40,000,000 shares
and to reduce the par value of the
shares of Common Stock from $.001
per share to $.0005 per share to
effect a two-for-one split in the For Against Abstain
Company's issued Common Stock ___ ___ ___
Please promptly mark, date, sign
and return this card using the
enclosed envelope. Please
contact Georgeson & Co., at
1-800-228-2064 with any
questions regarding the above.
SIGNATURE(S) ___________________________________________
DATE ________________________
Note: Sign exactly as name appears on stock certificate. If joint
tenant, both should sign. If attorney, executor, administrator, trustee
or guardian, give full title as such. If a corporation, please sign
corporate name by President or authorized officer. If partnership, sign
in full partnership name by authorized person.
