As filed with the Securities and Exchange Commission on April 24, 1996.
Registration No. 333-02267
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
Form S-8
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. Employee
incorporation or organization) Identification No.)
67 Walnut Avenue, Suite 103
Clark, New Jersey 07066
(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.
<PAGE>
PROSPECTUS
613,206 Shares
CONTINENTAL WASTE INDUSTRIES, INC.
Common Stock
($0.0006 par value per share)
This Prospectus relates to reoffers and resales of up to 613,206 shares
(the "Shares") of common stock, $0.0006 par value per share (the "Common
Stock"), of Continental Waste Industries, Inc. (the "Company") acquired by
certain officers and directors of the Company (the "Selling Shareholders") upon
the exercise of options to purchase Shares issued to these individuals under the
Company's 1995 Employee Stock Option Plan, 1995 Stock Option Plan for Outside
Directors or individual written agreements between the Company and these
individuals.
Resales of the Shares may be effected from time to time on the open market
in ordinary brokerage transactions on the Nasdaq National Market on which the
Common Stock is traded, in the over-the-counter market, or in private
transactions, at market prices prevailing at the time of sale or at negotiated
prices. The Shares will be offered for sale on terms to be determined when the
agreement to sell is made or at the time of sale, as the case may be. Shares may
be sold in transactions involving broker-dealers, who may act solely as agent
and/or may acquire Shares as principal. Broker-dealers participating in these
transactions as agent may receive commissions from the Selling Shareholder (and,
if they act as agent for the purchaser of these Shares, from the purchaser),
which commissions may be at negotiated rates. (See "Plan of Distribution").
There presently are no arrangements or understandings, formal or informal,
pertaining to the distribution of any Shares. The Company has agreed to bear all
expenses (other than underwriting discounts and selling commissions, and fees
and expenses of counsel and other advisors to the Selling Shareholders) in
connection with the registration of the Shares.
The Company's Common Stock is traded on the Nasdaq National Market under
the symbol "CONT." The last reported bid price on April 23, 1996 was $11.625 per
share.
Prospective purchasers should carefully consider the matters set forth
under the caption "Risk Factors" located on page 6.
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 April 24, 1996.
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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.
This Prospectus constitutes part of a Registration Statement on Form S-8
(together with all of the amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933 as amended (the "1933 Act"). This Prospectus omits certain of the
information contained in the Registration Statement, and reference is hereby
made to the Registration Statement for future information with respect to the
Company and the Shares offered hereby. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of the
document as filed. Each of these statements are qualified in their entirety by
this reference. The Registration Statement, including exhibits and schedules
thereto, may be inspected without charge at the offices of the Commission, and
copies of these materials may be obtained therefrom at prescribed rates.
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-KSB for the year ended December 31,
1995 filed by the Company with the Commission under the Exchange Act and the
description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Securities and Exchange
Commission on October 11, 1995 is hereby incorporated by reference.
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 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, GENERAL COUNSEL AND
SECRETARY, 67 WALNUT AVENUE, SUITE 103, CLARK, NEW JERSEY 07066 (TELEPHONE
908-396-0018).
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<PAGE>
PROSPECTUS SUMMARY
The information in this summary is qualified in its entirety by reference
to the information appearing elsewhere in this Prospectus and in the documents
incorporated herein by reference.
The Offering
Offered by Selling Shareholders: This Prospectus relates to the reoffer and
resale of 613,206 Shares acquired by
certain officers and directors of the
Company pursuant to the exercise of
options issued to these individuals under
the Option Plans (as defined herein) or
individual written agreements between the
Company and these individuals.
Nasdaq Symbol: "CONT"
THE COMPANY
The Company provides integrated solid waste management services to
residential, commercial and industrial customers concentrated primarily in the
eastern half of the United States. These services include non-hazardous landfill
disposal, solid waste collection, transfer station operations and recycling
programs. The Company conducts its operations in nine states and in Costa Rica,
and operates ten landfills, eight waste collection operations, thirteen transfer
stations and three recycling facilities. Since its founding in 1988, the Company
has experienced significant growth in revenue and operating income, due
primarily to the acquisition of 29 solid waste service businesses.
The Company's strategy is focused on an integrated operational model over
geographically diverse operations. In general, the Company seeks to own or
control both waste collection and disposal operations in each of the local
markets in which it competes. For the year ended December 31, 1995,
approximately 56% of the waste accepted by the Company's landfills was derived
from Company collection operations or delivered under contracts of more than one
year in duration. The Company's waste hauling and transfer operations currently
dispose at Company landfills approximately 93% of the waste which they collect.
This integration strategy is intended to improve cost competitiveness and
mitigate operating risk by reducing the dependence of the Company's landfills on
waste streams from unaffiliated haulers, and by reducing the exposure of the
Company's collection operations to disposal cost fluctuations at facilities
owned by third parties.
4
<PAGE>
The Company has grown through acquisitions and internal expansion. The
Company's recent acquisitions are taking the Company into selected new markets
in the eastern United States where it believes attractive opportunities for
growth and integration exist. In addition to its base of operations in the
Midwest and Mid-South, the Company is now serving markets in South Carolina and
central Florida and has announced potential acquisitions in central New Jersey.
Since January 1, 1995, the Company has completed nine acquisitions representing
approximately $15 million in estimated annual revenue. In addition, as of April
17, 1996, the Company had one acquisition under a non-binding letter of intent,
representing approximately $12 million in annual revenue. Although the Company
intends to aggressively pursue this and other transactions, there can be no
assurance that these transactions will be consummated or that the estimated
revenue will be achieved. The number and size of transactions under
consideration fluctuate continually as new letters of intent are signed and
acquisitions are completed or abandoned.
The Company targets landfill and collection business acquisitions primarily
within midsized regional markets in the United States, as well as selected urban
markets in Latin America. The Company pursues a "hub and spoke" acquisition
strategy involving the acquisition of landfills in its target markets, as well
as collection businesses and transfer stations which control waste volumes that
can be channeled into Company landfills. The Company seeks to acquire both
profitable and underperforming landfill and collection businesses. The Company
also seeks to achieve internal growth by providing acquired businesses with
access to capital; internal landfill remediation and construction capabilities;
enhanced marketing resources and credibility; expertise in regulatory and
permitting matters; and professional operating systems and financial controls.
The Company seeks to improve operating efficiencies and profitability at
acquired businesses through densifying collection routes, rationalizing
operating and administrative costs, and selectively increasing prices. The
Company's internal growth objectives are augmented by a continuing landfill
expansion program. The Company has approximately 50 million total cubic yards of
remaining disposal capacity permitted, or in various stages of permitting, at
its landfills. The Company believes that a substantial number of potential
acquisition candidates in North America exist. Despite the consolidation that
has occurred to date and the emergence of several large publicly-traded solid
waste management companies, an estimated 66% of the industry remains under the
control of approximately 6,000 private, predominantly small, collection and
disposal businesses and several hundred municipalities.
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.
Additional information concerning the Company's business assets, management,
results of operations and other matters is included in the Company's reports
filed under the Exchange Act that are incorporated by references in this
Prospectus. See "Documents Incorporated by Reference."
5
<PAGE>
RISK FACTORS
This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Actual results could differ materially from those projected in the
forward-looking statements based, among other things, upon the risk factors set
forth below and elsewhere in this Prospectus. In addition to the other
information contained and incorporated by reference in this Prospectus, the
following risk factors should be considered carefully in evaluating the Company
and its business before purchasing the Shares offered hereby:
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") 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. The failure
of the states or other regulatory agencies to enforce these regulations
vigorously or consistently may give an unfair advantage to competitors of the
Company whose facilities do not comply with the Subtitle D Regulations. 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, and could have a material adverse effect on the
Company's business and financial condition.
6
<PAGE>
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 renewal permit at the Company's
United Refuse landfill near Fort 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 if a facility owned or operated by the Company causes environmental
damage, or if waste transported by the Company causes environmental damage to
another site, or if 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 properties 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 ("CERCLA" or "Superfund") or
under comparable state laws; and criminal liability for the Company or its
officers. Any of the foregoing could have a material adverse effect on the
Company's business and financial condition. The Company has not been able to
obtain, at a reasonable premium, significant environmental impairment liability
insurance. As a result, 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.
7
<PAGE>
However, federal legislation has been proposed from time to time that 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. The United States Supreme Court invalidated as unconstitutional a
local ordinance that sought to impose such flow controls. However, certain state
and local jurisdictions continue to seek to enforce these restrictions, and some
lower federal courts have upheld local enforcement of restrictions similar to
those invalidated by the most recent Supreme Court decision. These restrictions
could result in reduced waste volume in certain areas, may adversely affect the
Company's ability to operate its landfills at their full capacity 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.
Availability and Integration of Potential Future Acquisitions. The
Company's strategy envisions that a substantial part of its future growth will
come from acquiring and integrating independent solid waste collection, transfer
and disposal operations. There can be no assurance that the Company will be able
to identify suitable acquisition candidates or, if identified, negotiate
successfully their acquisition. If the Company is successful in identifying and
negotiating suitable acquisitions, there can be no assurance that any debt or
equity financing necessary to complete the acquisition can be arranged on terms
satisfactory to the Company or that any such financing will not significantly
increase the Company's level of indebtedness or result in additional dilution to
existing shareholders. Moreover, there can be no assurance that the Company will
be able to integrate successfully any acquired business, or manage to improve
the operating or administrative efficiencies or productivity of any acquired
business. Failure by the Company to implement successfully its acquisition
strategy will limit the Company's growth potential.
Competition. The solid waste collection and disposal business is highly
competitive and requires substantial amounts of capital. The Company competes
both for customers and acquisition candidates with numerous waste management
companies, many of which have significantly larger operations and greater
resources. The Company also competes for customers with counties and
municipalities which 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 revenue 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 these 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 and with a comparable
contract within a reasonable time period could have a material adverse effect on
the Company's business and financial condition.
8
<PAGE>
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 in
connection 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 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 reduce 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.
Dependence on Senior Management. The Company is highly dependent upon its
senior management team. The lost of the services of any member of senior
management could 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 revenue may also be affected by seasonal weather conditions. This is
primarily because construction and demolition activities, remediation of
contaminated soils, and the volume of industrial and residential waste in the
regions where the Company operates tend 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 General Corporation Law (the
"Delaware Antitakeover Law") prohibits, under certain circumstances, "business
combinations" between a Delaware corporation whose stock is publicly-traded 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 shareholders.
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SELLING SHAREHOLDERS
This Prospectus relates to the reoffer and resale of an aggregate of up to
613,206 Shares acquired or to be acquired by the Selling Shareholders upon the
exercise of options to purchase Shares issued to these individuals under the
Company's 1995 Employee Stock Option Plan (the "Employee Plan"), the 1995 Stock
Option Plan for Outside Directors (the "Director Plan" collectively with the
Employee Plan, the "Option Plans"), or individual written agreements between the
Company and these individuals. The following sets forth a chart of the Common
Stock (including shares underlying options) owned by each of the Selling
Shareholders both before and after the Offering:
Shares Shares
Beneficially Shares Beneficially
Owned Prior to Being Owned
Selling Shareholder Position Offering (1) Offered After Offering
Thomas A. Volini Chairman of the Board 1,210,514 287,016 923,498
and Chief Operating
Officer
Carlos E. Aguero President, Chief 1,305,343 73,100 1,232,243
Executive Officer
and Director
Michael J. Drury Senior Vice President 155,697 80,834 74,863
and Chief Financial
Officer
Jeffrey E. Levine Senior Vice President 45,000 45,000 0
General Counsel and
Secretary
Allen R. Brodbeck Senior Vice President 31,597 27,251 4,346
of Landfill Operations
Brett R. Maxwell Director 33,335 33,335 0
Donald H. Haider Director 33,335 33,335 0
Richard J. Carlson Director 33,335 33,335 0
(1) Includes Shares which were acquired or will be acquired upon the exercise
of options granted to these individuals under the Option Plans or pursuant
to individual written agreements between the Company and these individuals.
The number of Shares which may actually be sold by each Selling Shareholder
will be determined from time to time by each individual and will depend upon a
number of factors, including the price of the Shares from time to time. Since
these individuals may offer all or none of the Shares that they acquire pursuant
to the exercise of options and because the Offering is not being underwritten,
no estimate can be given as to the number of Shares that will be held by each
individual.
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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 May 10,
1994. The Stockholders' Agreement contains a voting agreement under which the
parties thereto have agreed to take all actions necessary to maintain Messrs.
Aguero, Volini, Carlson, Haider and the designee of the Venture Investors
(currently Mr. Maxwell) as members of the Company's Board of Directors. 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, at a price equal to the average closing
price as quoted on the Nasdaq National Market for the 15 trading days ending one
week prior to the date of repurchase (the "Repurchase Price"). Further, upon the
death of either Messrs. Aguero or Volini, the decendent party's estate or legal
representative has the right to cause the Company to pruchase the decendent
party's Shares of Common Stock at a price equal to the quotient obtained by
dividing the proceeds of any life insurance policy on the decendent by the
Repurchase Price. The Company is the beneficiary of a key man insurance policy
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.
Since 1994, the Company has purchased materials totaling approximately $2.2
million from Mid- America Lining Co. Mr. Brodbeck owns 25.0% of the outstanding
equity of Mid-America Lining Co.
Each of the Selling Shareholders offering Shares pursuant to this
Prospectus will be subject to the applicable provisions of the Exchange Act, and
the rules and regulations thereunder, including without limitation, Rules 10b-2,
10b-6 and 10b-7, all of which may limit the timing of purchases and sales of any
of the Shares. All of the foregoing may effect the marketability of the Shares.
The Company will pay substantially all of the expenses incident to this offering
except brokerage fees, commissions and discounts of underwriters, dealers or
agents. The Shares will be sold only through registered or licensed brokers or
dealers where necessary to comply with state securities laws. In addition, in
certain states the Shares may not be sold unless they have been registered or
qualified for sale in that state or an exemption from registration or
qualification is available and the Company or the individual selling the Shares
comply with the applicable requirements.
USE OF PROCEEDS
This Prospectus relates to an aggregate of 613,206 Shares of Common Stock
that are being offered for the account of the Selling Shareholders. All proceeds
from the sale of these Shares will go to the individual Selling Shareholder.
The Company will receive approximately $2,650,746 upon the exercise of
options underlying the Shares. Proceeds received by the Company will be used for
general corporate purposes.
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DESCRIPTION OF CAPTIAL STOCK
General
The authorized capital stock of the Company consists of: (I) 40,000,000
shares of Common Stock par value $0.0006 per share, 14,250,411 of which shares
were outstanding as of the date of this Prospectus; (ii) 425,200 shares of
preferred stock without designation, par value $5.64 per share, none of which
was issued and outstanding as of the date of this Prospectus; (iii) 119,000
shares of preferrred stock without designation, par value $20.00 per share, none
of which was 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
was 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
preemptive, subscription, conversion or redemption rights pertaining to the
shares of Common Stock. Shareholders are entitled to receive dividends as
declared by the board of directors out of assets legally available therefore and
to share ratably in the assets of the Company available upon liquidation.
The Company's certificate of incorporation does not provide for cumulative
voting. Therefore, shareholders do not have the right to aggregate their votes
for the election of directors and, accordingly, shareholders holding more than
50% of the shares of Common Stock outstanding can elect all of the directors.
Preferred Stock
The Company's 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
preferred stock remaining undesignated in one or more series, and to fix the
number of shares of preferred stock remaining undesignated 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.
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 publicly-traded 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; (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 662/3% of the
voting stock which the interested stockholder did not own. The Company has not
opted out of the Delaware Antitakeover Law.
12
<PAGE>
The three-year prohibition described in the preceding paragraph also does
not apply to certain business combinations proposed by an interested shareholder
following the announcement or notification of certain extraordinary transactions
involving the corporation and a person who had not been an interested
shareholder during the previous three years or who became an interested
shareholder with the approval of a majority of the corporation's directors or
who became an interested shareholder 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 shareholder, transactions with an interested shareholder involving
the assets or stock of the corporation or its majority-owned subsidiaries, and
transactions which increase an interested shareholder's percentage ownership of
stock. The term "interested shareholder" is defined, generally, as those
shareholders who become beneficial owners of 15% or more of a Delaware
corporation's voting stock. See "Rick 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 shareholders.
<PAGE>
PLAN OF DISTRIBUTION
This Prospectus, as amended or supplemented, may be used from time to time
by the Selling Shareholder, or his transferees, to offer and sell the Shares in
transactions in which the Selling Shareholder 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 these
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
Shareholders 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 traded, in the over-the-counter market, or in private
transactions (which may involve cross 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. Brokers or dealers may be engaged to act as the Selling Shareholder's
Agent in the sale of the Shares by the Selling Shareholder and/or may acquire
Shares as principal. Brokers or dealers participating in these transactions as
agent may receive commissions from the Selling Shareholders (and, if they act as
agent for the purchaser of the Shares, from the purchaser). These commissions
must be computed in appropriate cases in accordance with the applicable rates of
the Nasdaq and may be at negotiated rates where permissible. Sales of the Shares
by brokers or dealers 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.
13
Participating broker-dealers may agree with the Selling Shareholder to sell
a specified number of Shares at a stipulated price per share and, to the extent
the broker-dealer is unable to do so acting as agent for the Selling
Shareholder, to purchase as principal any unsold Shares at the price required to
fulfill the broker- dealer's commitment to the Selling Shareholder. In addition
or alternatively, Shares may be sold by the Selling Shareholder, and/or by or
through the broker-dealer 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 Nasdaq rules 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 the customary commission. Broker-dealers who acquire
Shares as principal may thereafter resell the Shares from time to time in
transactions (which may involve cross and block transactions which may involve
sales to and through other broker-dealers, including transactions of the nature
described in the preceding two sentences) over the Nasdaq National Market, in
negotiated transactions, or otherwise, at market prices prevailing at the time
of sale or at negotiated prices, and in connection with these resales may pay to
or receive commissions from the purchaser of the Shares.
Upon being notified by a Selling Shareholder that a particular offer to
sell the Shares is made, or that 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, the Company will deliver this
Prospectus plus a supplement to this Prospectus filed pursuant to Rule 424(b)
under the Securities Act setting forth 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 firms
involved; (iv) any discounts, commissions and other items paid as compensation
from, and the resulting net proceeds to, the Selling Shareholder; (v) a
statement that the broker-dealer 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 Shareholders or through agents
designated by the Selling Shareholders 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 Shareholders and any brokers, dealers, agents, member firm or
others that participate with the Selling Shareholders 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 Shareholders 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 Shareholders to indemnification against
certain civil liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the Shares offered by this Prospectus has been passed upon
by Shefsky, Froelich & Devine Ltd., Chicago, Illinois.
14
<PAGE>
EXPERTS
The consolidated financial statements of Continental Waste Industries, Inc.
as of December 31, 1994 and 1995 and for the years ended December 31, 1993, 1994
and 1995 incorporated by reference into 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.
[Rest of Page Left Blank Intentionally]
15
<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 nor any sale made hereunder shall CONTINENTAL
under any circumstances create any implication
that there has been no change in the affairs WASTE INDUSTRIES,
of the Company since the date hereof. This
Prospectus does not constitute an offer or INC.
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
613,206
TABLE OF CONTENTS Shares of
Common Stock
($0.0006 Par Value)
Page
Available Information . . . . . . . . . . . . . . 2
Documents Incorporated by Reference . 3
Prospectus Summary . . . . . . . . . . . . . . . 4
The Company . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . 6
Selected Consolidated Financial
and Operating Data . . . . . . . . . . . . . . . 9
Selling Shareholders . . . . . . . . . . . . . . 10 April 24, 1996
Use of Proceeds . . . . . . . . . . . . . . . . . 11
Description of Capital Stock . . . . . . . . . . 12
Plan of Distribution . . . . . . . . . . . . . . 13
Legal Matters . . . . . . . . . . . . . . . . . . 14
Experts . . . . . . . . . . . . . . . . . . . . . 15
<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission by the Registrant are hereby incorporated by reference in this
Registration Statement and made a part thereof as of their respective
filing dates:
1. The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1995.
2. The Registrant's Current Report on Form 8-K dated April 24, 1996.
3. The description of the Registrant's Common Stock which is
contained in the Registrant's Registration Statement on Form 8-A
filed with the Securities and Exchange Commission on October 11,
1995 under Section 12 of the Securities Exchange Act of 1934,
including any amendments or reports filed for the purpose of
updating the description.
4. All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c) 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment to the
Registration Statement which indicates that all of the shares of
common stock offered have been sold or which deregisters all of
the shares then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be
a part hereof from the date of filing of those documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes this
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities
Not Applicable
Item 5. Interest of Name Experts and Counsel
Not Applicable
II-1
Item 6. Indemnification of Directors and Officers
Section 2 of Article Eighth of the Registrant's Certificate of
Incorporation provides for indemnification of the Registrant'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 the 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 Registrant's Certificate of
Incorporation limits the liability of the Registrant's directors to
the Registrant 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 obtaining an
improper personal benefit. This provision has no affect on the
availability of equitable remedies, such as an injunction or
recission, 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 Registrant maintains directors and officers
liability insurance that will insure against liabilities that
directors and officers of the Registrant may incur in such capacities.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended and the rules and regulations
thereunder (the "Act") may be permitted for directors, officers, and
controlling persons of the Registrant pursuant to the foregoing, or
otherwise, the Registrant has been advised that in the opinion of the
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.
II-2
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
The Exhibits to this Registration Statement are listed in the
Exhibit Index to this Registration Statement, which Index is
incorporated herein by reference. The Registrant hereby undertakes to
submit the Employee Plan and the Outside Director Plan and any
amendments thereto to the Internal Revenue Service (the "IRS") in a
timely manner and will make all changes required by the IRS in order
to modify each plan.
Item 9. 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 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;
(2) That, for determining liability under the Securities Act of
1933, each such post- effective amendment shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of the securities at that
time shall be deemed to be the initial bona fide offering
thereof; and
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the 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.
II-3
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<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-8 and has duly caused this
Post-Effective Amendment No. 1 to the 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 22nd day of April, 1996.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Carlos E. Aguero
Carlos E. Aguero
President, Chief Executive Officer
and Director
- -
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in their respective capacities with the
Registrant on the dates indicated.
Signature Title Date
* Chairman of the Board and April 22, 1996
Thomas A. Volini Chief Operating Officer
(Principal Executive Officer)
* President, Chief Executive April 22, 1996
Carlos E. Aguero Officer and Director
(Principal Executive Officer)
* Senior Vice President and April 22, 1996
Michael J. Drury (Chief Financial Officer and
Chief Accounting Officer)
* Director April 22, 1996
Bret R. Maxwell
* Director April 22, 1996
Donald H. Haider
* Director April 22, 1996
Richard J. Carlson
* By:/s/ Carlos E. Aguero April 22, 1996
Carlos E. Aguero
Attorney-in-fact
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4.1* Continental Waste Industries, Inc. 1995 Employee Stock Option Plan
4.2* Continental Waste Industries, Inc. 1995 Employee Stock Option Plan
for Outside Directors
4.3 * Form of Grant of Employee Stock Option Agreement
4.4 * Form of Adjustment of Employee Stock Option Agreement
5 * Opinion of Shefsky Froelich & Devine Ltd.
23.1 Consent of Arthur Andersen LLP
23.2 * Consent of Shefsky Froelich & Devine Ltd. (included in the opinion
filed as Exhibit 5 to this Registration Statement)
24 * Power of Attorney (included on the signature page for this
Registration Statement)
* Previously filed by the Registrant
II-6
<PAGE>
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
<PAGE>
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 20,
1996, included in Continental Waste Industries, Inc.'s Form 10- KSB for the year
ended December 31, 1995.
ARTHUR ANDERSEN LLP
Chicago, Illinois
April 18, 1996
