As filed with the Securities and Exchange Commission on January
18, 1996.
Registration No. 33-65047
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CONTINENTAL WASTE INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2909512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
67 Walnut Avenue, Suite 103
Clark, New Jersey
(908) 396-0018
(Address including zip code, and telephone number, including area
code, of registrant's principal executive offices)
CARLOS E. AGUERO
CONTINENTAL WASTE INDUSTRIES, INC.
67 Walnut Avenue, Suite 103
Clark, New Jersey 07066
(908) 396-0018
(Name and address, including zip code, and telephone number,
including area code, of agents for service)
With a Copy to:
MICHAEL J. CHOATE, ESQ.
SHEFSKY FROELICH & DEVINE LTD.
444 North Michigan Avenue, Suite 2500
Chicago, Illinois 60611
(312) 527-4000
Approximate date of commencement of proposed sale to the
public:
As soon as practicable after this Registration Statement has
become effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. X
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. _________
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering. _________
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed
class of Maximum Maximum
securities Offering Aggregate Amount of
to be Amount to be Price Per Offering Registration
registered Registered(1) Share (2) Price (2) Fee(3)
Common Stock, 2,363,453 $10.25 $24,225,393.15 $8,354
par value
$0.0006 per
share
(1) A total of 109,908 shares of common stock are being carried
forward from the Registrant's Registration Statement,
Registration No. 33-86042. A registration fee of $369.00 was
paid by the Registrant in connection with the registration of
these securities.
(2) Estimated solely for purposes of calculating the
registration fee in accordance with Rule 457(c).
(3) A registration fee of $8,845 was paid previously by the
registrant with the initial filing.
In accordance with Rule 429, the Prospectus contained in
this Registration Statement will also be used in connection
with the sale of securities previously registered by the
Registrant on Form S-3 and dated November 4, 1994, Registration
No. 33-86042.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
2,473,361 Shares
CONTINENTAL WASTE INDUSTRIES, INC.
Common Stock
($0.0006 par value per share)
This Prospectus relates to the public offering of up to
2,473,361 shares (the "Shares") of common stock, $0.0006 par
value per share (the "Common Stock"), of Continental Waste
Industries, Inc. (the "Company"). All of the Shares offered
hereby may be sold from time to time by the stockholders
described herein (each a "Selling Stockholder," collectively the
"Selling Stockholders") in transactions in which they and any
broker-dealer through whom such Shares are sold may be deemed
to be underwriters within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), as more fully
described herein. Any commissions paid or concessions allowed to
any broker-dealer, and, if any broker-dealer purchases such
Shares as principal, any profits received on the resale of such
Shares, may be deemed to be underwriting discounts and
commissions under the Act. The Company will not receive any
of the proceeds from the sale of the Shares but will pay the
expenses incurred in registering the Shares, including legal and
accounting fees. Selling Stockholders will bear all other
expenses of this offering, including brokerage fees, any
underwriting discounts or commissions. In accordance with Rule
429, this Prospectus is also being used in connection with the
sale of Shares previously registered by the Company on Form S-3
and dated November 4, 1994, Registration No. 33-86042.
On January 12, 1996, the Company had 14,044,262 shares of its
Common Stock outstanding. The Common Stock is included for
quotation on the Nasdaq National Market ("Nasdaq") under the
symbol "CONT." The last reported sale price of the Common Stock
on the Nasdaq on January 16, 1996 was $11 7/16 per share.
Prospective purchasers should carefully consider the matters
set forth under the caption "Risk Factors" located on page 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is January 18, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). These reports, proxy statements
and other information can be inspected and copied at the public
reference facilities of the Commission, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549; New York Regional
Office, Public Reference Room, Seven World Trade Center, 13th
Floor, New York, New York 10048; and Chicago Regional Office,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661.
Copies of this material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Common Stock is included
for quotation on the Nasdaq National Market and these reports,
proxy statements and other information concerning the
Company may be inspected at the office of the Nasdaq National
Market, 1735 K Street, N.W., Washington, D.C. 20006. This
Prospectus does not contain all of the information set forth in
the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. The
Registration Statement and any amendments thereto, including
exhibits filed as a part thereof, are available for inspection
and copying as set forth above.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents heretofore filed by the Company with
the Commission under the Exchange Act are incorporated herein by
reference: (i) the Company's Annual Report on Form 10-KSB
for the year ended December 31, 1994; (ii) the Company's
Quarterly Report on Form 10-QSB for the quarters ended March 31,
1995, June 30, 1995 and September 30, 1995; and (iii) the
Company's Current Reports on Form 8-K dated April 1, 1995, August
28, 1995, October 11, 1995, October 27, 1995, October 31, 1995
and January 10, 1996.
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
orsuperseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except
as so modified or superseded. All information appearing in this
Prospectus is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the
documents incorporated herein by reference.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE
NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
(OTHER THAN EXHIBITS THERETO) ARE AVAILABLE WITHOUT CHARGE, UPON
WRITTEN OR ORAL REQUEST BY ANY PERSON TO WHOM THIS PROSPECTUS HAS
BEEN DELIVERED, FROM THE COMPANY. REQUESTS SHOULD BE DIRECTED TO
JEFFREY E. LEVINE, SENIOR VICE PRESIDENT AND GENERAL COUNSEL, 67
WALNUT AVENUE, SUITE 103, CLARK, NEW JERSEY 07066 (TELEPHONE
908-396-0018).
<PAGE>
THE COMPANY
Continental Waste Industries, Inc. (the "Company") provides
integrated solid waste management services to approximately
175,000 residential, commercial and industrial customers
concentrated primarily in the Midwestern and Mid-South regions of
the United States. These services include non-hazardous
landfill disposal, solid waste collection, transfer station
operations and recycling programs. The Company also provides
solid waste management services in Costa Rica and Mexico.
The Company has grown both through 27 separate acquisitions
and through internal growth expansion. The Company significantly
expanded the scope of its operations in July 1994 by acquiring
a controlling interest in Victory Waste Incorporated ("Victory")
and G.E.M. Environmental Management, Inc. ( GEM ) which
collectively operated three landfills and a waste collection
company in Indiana. Since the Company's public offering in
November 1994, the Company has completed seven acquisitions,
representing annual revenues of approximately $15.0 million based
on nine months of operating results for the period ended
September 30, 1995.
The Company conducts its domestic solid waste operations in
Indiana, Michigan, Missouri, Illinois, Kentucky, South Carolina,
Tennessee, Mississippi and West Virginia. The Company operates
primarily in smaller metropolitan markets and in rural areas,
although some sites are economically accessible from Chicago and
other large cities. The Company currently owns and operates a
total of nine landfills, nine waste collection operations,
thirteen transfer stations and three municipal recycling
facilities. At its landfills, the Company has approximately 750
acres permitted or in various stages of permitting approval. The
Company accepted approximately 1.2 million tons of solid waste at
its landfills during the nine months ended September 30, 1995.
The Company's growth strategy is centered around landfill and
collection business acquisitions and a landfill capacity
expansion program primarily within midsized regional markets, as
well as selected Latin American markets. The Company pursues a
"hub and spoke" acquisition strategy, involving the acquisition
of landfills in its target markets as well as collection
operations around Company-owned landfills. The Company targets
both profitable and under-performing landfills and collection
businesses. The Company will also consider acquiring recycling
businesses in markets where these businesses can complement the
Company's solid waste management services.
The Company believes it enhances the productivity of acquired
businesses through its expertise in regulatory and permitting
matters and through its internal landfill remediation and
construction capabilities. The Company also seeks to optimize
the performance of acquired businesses and the utilization of
disposal capacity by securing a captive waste stream for each
landfill site through an integrated network of collection
companies and transfer stations; through long-term disposal
contracts; through enhanced marketing initiatives; through the
public contract bidding process; through acquisitions of customer
lists; and through other programs that reduce dependence on waste
volumes from unaffiliated haulers. At present, approximately 48%
of the waste received by the Company's landfills is derived from
the Company's own collection and transfer station operations or
is received under contracts of more than one year in duration.
The Company seeks to improve operating efficiencies and
profitability through densifying collection routes, rationalizing
operating and administrative costs, and selectively increasing
prices.
The Company's waste hauling and transfer operations currently
dispose at Company landfills more than 90% of the waste which
they collect. The Company targets collection markets where it
can be the leading provider of services. In each of the markets
where the Company provides collection services, the Company
believes that it is the leading collector and has established a
balanced mix of residential, commercial, industrial and
municipally-contracted service revenues.
Another element of the Company's growth strategy is evidenced
by its recent entry into the Latin American marketplace. In
August 1994, the Company completed the acquisition of the only
privately-owned, non-hazardous waste landfill operation in Costa
Rica. This business holds municipal contracts to serve 55,000
residential and small commercial customers located in the first,
second and sixth largest cities in Costa Rica. In August 1995,
the Company acquired a 72% interest in Procesa Continental S.A.
de C.V. ( Procesa ), a Mexican landfill, engineering and
management company headquartered in Mexico City. The Company
believes Procesa provides the Company with a strategic entry into
the Mexican solid waste disposal market and provides a base for
expanding the Company's operations in Mexico. The Company
intends to increase its operations in Latin America, primarily
through obtaining operating contracts and secondarily through
joint ventures with local entities or by acquiring existing waste
collection and/or disposal businesses.
The Company is a Delaware corporation with its principal
executive offices located at 67 Walnut Avenue, Suite 103, Clark,
New Jersey 07066; (908) 396-0018.
RISK FACTORS
Prospective investors should be aware of the following
material risks relating to an investment in the Company:
Extensive Environmental and Land Use Laws and Regulations. The
Company is subject to extensive and evolving environmental and
land use laws and regulations which have become increasingly
stringent in recent years as a result of greater public interest
in protecting the environment. These laws and regulations affect
the Company's business in many ways, including as set forth
below, and will continue to impose substantial costs on the
Company. Additionally, any reduction in enforcement or
relaxation of environmental regulations could have a material
adverse effect on the Company's business and financial condition.
Extensive Permitting Requirements. In order to develop,
operate and expand solid waste management facilities, it is
generally necessary to obtain and maintain in effect one or more
permits as well as zoning, environmental and/or other land use
approvals. These permits and approvals are difficult and time
consuming to obtain and are frequently subject to opposition by
various elected officials or citizens. In addition, facility
operating permits may be subject to modification or revocation,
and it may be necessary to periodically renew a permit, which may
reopen opportunities for opposition to the permit. There can be
no assurance that the Company will be successful in obtaining and
maintaining in effect the permits and approvals required for
the successful operation and growth of its business, and the
failure by the Company to obtain or maintain in effect a permit
significant to its business could have a material adverse effect
on the Company's business and financial condition.
Design, Operation and Closure Requirements. The design,
operation and closure of landfills is extensively regulated.
These regulations include, among others, the regulations (the
"Subtitle D Regulations") establishing minimum federal
requirements adopted by the United States Environmental
Protection Agency (the "EPA") in October 1991 under Subtitle D of
the Resource Conservation and Recovery Act of 1976 ("RCRA"). The
Subtitle D Regulations require all states to adopt regulations
regarding landfill design, operation and closure requirements
that are no less stringent than the Subtitle D Regulations. Most
states, including those states in which the Company's
landfills are located, have extensive landfill regulations
which have been updated or replaced with new regulations
consistent with the Subtitle D Regulations. These federal and
state regulations require the Company to monitor groundwater,
provide financial assurance, and fulfill closure and post-closure
obligations. These regulations could also require the Company to
undertake investigatory or remedial activities, to curtail
operations or to close a landfill temporarily or permanently.
Future changes in these regulations may require the Company to
modify, supplement, or replace equipment or facilities at costs
which may be substantial. Although the Company maintains
reserves for the payment of obligations related to the closure
and post-closure monitoring of landfill sites and the remediation
of its facilities, the financial obligations related to these
responsibilities may exceed the Company s reserves, thereby
having a material adverse effect on the Company s business and
financial condition.
Legal and Administrative Proceedings. In the ordinary
course of its business, the Company may become involved in a
variety of legal and administrative proceedings relating to land
use and environmental laws and regulations. These may include
proceedings by federal, state or local agencies seeking to impose
civil or criminal penalties on the Company for violations of
those laws and regulations, or to impose liability on the Company
under federal or comparable state statutes, or to revoke or deny
renewal of a permit; actions brought by citizens groups, adjacent
landowners or governmental entities opposing the issuance of a
permit or approval to the Company or alleging violations of the
permits pursuant to which the Company operates or laws or
regulations to which the Company is subject; and actions seeking
to impose liability on the Company for any environmental damage
at its landfill sites or that its landfills or other properties
may have caused to adjacent landowners or others, including
groundwater or soil contamination. A local citizens group
recently filed objections to issuance of a renewed permit at the
Company's United Refuse landfill near Ft. Wayne, Indiana. The
Company could incur substantial legal expenses during the course
of this or other proceedings, and these expenses or the adverse
outcome of one or more of these proceedings could have a material
adverse effect on the Company's business and financial condition.
During the ordinary course of its operations, the Company has
from time to time received, and expects that it may in the future
from time to time receive, notices from governmental authorities
that its operations are not in compliance with its permits or
certain applicable environmental or land use laws and
regulations. The Company generally seeks to work with the
authorities to resolve the issues raised by such citations or
notices. There can be no assurance, however, that the Company
will always be successful in this regard, and the failure to
resolve a significant issue could have a material adverse effect
on the Company s business and financial condition.
Potential Liabilities. There may be various adverse
consequences to the Company in the event that a facility owned or
operated by the Company causes environmental damage, in the event
that waste transported by the Company causes environmental damage
at another site, or in the event that the Company fails to comply
with applicable environmental and land use laws and regulations
or the terms of a permit or outstanding consent order. These may
include the imposition of substantial monetary penalties on the
Company; the issuance of an order requiring the curtailment or
termination of the operations involved or affected; the
revocation or denial of permits or other approvals necessary for
continued operation or landfill expansion; the imposition of
liability on the Company in respect of any environmental damage
(including groundwater or soil contamination) both at its
landfill sites as well as those of adjacent landowners or others
which may have been caused by the Company's landfills or by waste
transported by the Company; the imposition of liability on the
Company under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ( Superfund ) or under
comparable state laws; and criminal liability for the Company or
its officers. Any of the foregoing could adversely affect the
Company's business and financial condition. The Company has not
been able to obtain, at a reasonable premium, significant
environmental impairment liability insurance. Liability for
environmental damage could have a material adverse effect on the
Company s business and financial condition.
Type, Quantity and Source Limitations. Certain permits and
approvals may limit the types or quantity of waste that may be
accepted at a landfill during a given time period. In addition,
certain permits and approvals, as well as certain state and local
regulations, may limit a landfill to accepting waste that
originates from specified geographic areas or seek to restrict
the import of out-of-state waste or otherwise discriminate
against out-of-state waste. Some of the waste accepted at the
Company's landfills is transferred across state borders.
Generally, restrictions on the import of out-of-state waste have
not withstood judicial challenge. However, proposed federal
legislation would allow individual states to prohibit the
disposal of out-of-state waste or to limit the amount of
out-of-state waste that could be imported for disposal and would
require states, under certain circumstances, to reduce the
amounts of waste exported to other states. If this or similar
legislation is enacted, states in which the Company operates
landfills could act to limit or prohibit the import of
out-of-state waste. Such state actions could adversely affect
landfills within those states that receive a significant portion
of waste originating from out-of-state and could have a material
adverse effect on the company's business and financial condition.
In addition, certain states and localities may, for economic or
other reasons, restrict the export of waste from their
jurisdiction or require that a specified amount of waste be
disposed of at facilities within their jurisdiction. Recently,
the United States Supreme Court held unconstitutional, and
therefore invalid, a local ordinance that sought to impose flow
controls. However, certain state and local jurisdictions
continue to enforce these restrictions. These restrictions could
result in reduced waste volume in certain areas, which may
adversely affect the Company's ability to operate its landfills
at their full capacity and/or affect the prices that can be
charged for landfill disposal services. These restrictions may
also result in higher disposal costs for the Company's collection
operations. An inability to pass along these higher operating or
disposal costs to customers could have a material adverse effect
on the Company s business and financial condition.
Limitations on Expansion. The Company's growth strategy
depends, in part, on its ability to expand current and additional
disposal facilities and related collection businesses. The
difficulty and uncertainty related to permitting new or expanding
existing disposal facilities, together with the continuing
decrease in the number of operating landfills throughout the
country has caused intense competition in the waste disposal
industry for the acquisition of existing landfills and related
businesses. Accordingly, it may become uneconomical for the
Company to make further acquisitions or the Company may be unable
to locate suitable acquisition candidates, particularly in
markets the Company does not already serve. There can be no
assurance of future opportunities to acquire or expand landfills
at reasonable cost within the Company's financial capability.
Further, any growth of the Company through the expansion or
modification of permits at existing disposal facilities will
require substantial capital expenditures for engineering fees and
for construction costs if such permits are granted. The
inability to acquire or expand landfills at a reasonable cost,
secure necessary permits, or fund capital expenditures related
thereto could have a material adverse effect on the Company s
business and financial condition.
Capitalized Expenditures. In accordance with generally
accepted accounting principles, the Company capitalizes certain
expenditures and advances relating to its acquisitions, pending
acquisitions and landfill development and expansion projects.
Indirect acquisition costs, such as executive salaries, general
corporate overhead, public affairs and other corporate services,
are expensed as incurred. The Company charges against earnings
any unamortized capitalized expenditures and advances (net of any
portion thereof that the Company estimates will be recoverable,
through sale or otherwise) relating to any operation that is
permanently shut down, any pending acquisition that is not
consummated, and any landfill development or expansion project
not successfully completed. There can be no assurance that the
Company will not be required to incur a charges in the future
against earnings in accordance with this policy, which charges,
against earnings, if significant, could have a material adverse
effect on the Company s business and financial condition.
Competition. The solid waste collection and disposal
business is highly competitive and requires substantial amounts
of capital. The Company competes with numerous waste management
companies, many of which have significantly larger operations and
greater resources. The Company also competes with counties and
municipalities that maintain their own waste collection and
disposal operations. These counties and municipalities may be
better positioned to finance these operations due to the
availability of tax revenues and tax exempt financing. In
addition, competitors may reduce the price of their services in
an effort to expand market share or to win competitively bid
municipal contracts.
The Company provides a portion of its residential collection
services under county and municipal contracts that are subject to
periodic competitive bidding. There is no assurance that the
Company will be the successful bidder in the future and will be
able to retain such contracts. The Company's inability to
compete with these larger and better capitalized companies, or to
replace any contract lost through the competitive bidding process
with a comparable contract within a reasonable time period could
have a material adverse effect on the Company's business and
financial condition.
Financial Assurance Obligations. The Company is
required, from time to time, to provide financial assurance in
connection with municipal residential collection contracts and to
a lesser extent private sector customers, and with the operation
or closure of landfills and post-closure monitoring and
corrective activities. If the Company were to be unable to
obtain surety bonds or letters of credit in sufficient amounts or
at reasonable rates, or to provide other required forms of
financial assurance, it might be precluded from entering into
additional municipal collection contracts or obtaining or
retaining required landfill permits and approvals. The inability
to provide financial assurance could have a material adverse
effect on the Company's business and financial condition.
Alternatives to Landfill Disposal. Alternatives to
landfill disposal, such as recycling, incineration and
composting, are increasingly being utilized in the waste
management industry. In addition, there has been a growing trend
at the state and local levels to mandate recycling and waste
reduction at the source and to prohibit the disposal of certain
types of wastes, such as yard wastes, at landfills. For example,
many states, including states in which the Company owns
landfills, have adopted bans on the disposal of yard waste or
leaves in landfills and many states have adopted rules
restricting or limiting disposal of tires at landfills. This may
result in the volume of waste going to landfills in certain
areas, which may affect the Company's ability to operate its
landfills at their full capacity and/or affect the prices that
can be charged for landfill disposal services.
Uncertainty of Operations in Latin America. The
Company's Latin American operations are subject generally to such
risks as currency fluctuations and exchange controls,
availability of suitable employees to control and coordinate
operations in different jurisdictions, changes in foreign laws or
governmental policies or attitudes concerning their enforcement,
political changes, uncertain local economic conditions, and
international tensions. An adverse change in any of these items
could have a material adverse effect on the Company's business
and financial condition.
The Company's Latin American operations are also subject to
risks associated with Latin American regulations governing solid
waste disposal operations. The inability or unwillingness of
governments in Latin America to enforce existing environmental
regulations could adversely affect demand for the Company's
services in Latin America and could have a material adverse
effect on the Company s business and financial condition. In
addition, changes in these regulations could have a material
adverse effect on the company's business and financial condition.
Dependence on Senior Management. The Company is highly
dependent upon its senior management team. The loss of the
services of any member of senior management may have a material
adverse effect on the Company s business and financial condition.
Economic Cycles and Seasonality. The Company's business
is affected by general economic conditions. There can be no
assurance that an economic downturn will not result in a
reduction in the volume of waste disposed at the Company's
operations and/or the price that the Company can charge for its
services. The Company's revenues may also be affected by
seasonal weather conditions. This is primarily attributable to:
(i) the volume of waste relating to construction and demolition
activities and activities relating to the remediation of
contaminated soils tending to increase in the spring and summer
months; and (ii) the volume of industrial and residential waste
in the regions where the Company operates tending to decrease
during the winter months. Particularly harsh weather conditions
may result in the temporary suspension of certain of the
Company's operations which could have a material adverse effect
on the Company's business and financial condition.
Prohibitions Under the Delaware General Corporation Law
Restricting Certain Business Combinations. Section 203 of the
Delaware Corporation Law (the "Delaware Antitakeover Law")
prohibits, under certain circumstances, "business combinations"
between a Delaware corporation, whose stock is publicly-traded or
held by more than 2,000 stockholders, and an "interested
stockholder" of such corporation. The provisions prohibiting
business combinations could delay or frustrate the removal of
incumbent directors or a change in control of the Company. The
provisions also could discourage, impede, or prevent a merger,
tender offer or proxy contest, even if such event would be
favorable to the interests of stockholders. See "Description of
Capital Stock Delaware Antitakeover Law."
Potential Insurance of Preferred Shares. The Company's
Certificate of Incorporation authorizes the issuance of: (i)
425,200 shares of preferred stock without designation, par value
of $5.64 per share; (ii) 119,000 shares of preferred stock
without designation, par value of $20.00 per share (the preferred
shares described in items (i) and (ii) are collectively referred
to as the "Non-designated Preferred Shares"); and (iii) 100,000
shares of blank check preferred stock, par value $0.001 per share
(the "Blank Check Preferred Shares"); none of which shares of
preferred stock were issued and outstanding as of the date of
this Prospectus. Although the issuance of Non-designated
Preferred Shares would require stockholder approval, the
Company's certificate of incorporation grants the Board of
Directors the right to cause the Company to issue the Blank Check
Preferred Shares in one or more series. The Board of Directors
has the authority to issue the Blank Check Preferred Shares and
determine or alter for each such series, the voting powers, full
or limited, or new voting powers, and such designations,
preferences, and relative participating, optional or other
special rights and such qualifications, limitations, or
restrictions. If the Company should ever issue preferred shares,
such preferred shares could contain voting or other rights which
could discourage, impede, or prevent a merger, tender offer or
proxy contest which could be favorable to the interests of
stockholders.
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following table sets forth selected consolidated financial
information derived from the consolidated financial statements of
the Company and selected consolidated operating data for the
periods indicated. Balance sheet data as of December 31, 1991,
1992, 1993 and 1994 and income statement data for the years then
ended have been derived from audited consolidated financial
statements. Balance sheet data as of December 31, 1990 and
income statement data for the year ended December 31, 1990 and
balance sheet data as of September 30, 1995 and income statement
data for the nine months ended September 30, 1994 and 1995 have
been derived from unaudited consolidated financial statements
which, in the opinion of management, include all adjustments
necessary for a fair statement of the results of operations and
financial position for such periods and as of such dates.
Results for the nine months ended September 30, 1995 are not
necessarily indicative of results for the full year. Certain
factors that affect the comparability of the information set
forth in the following table are described in the footnotes
thereto. In addition, the data should be read in conjunction
with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the Consolidated Financial
Statements and related Notes filed in the Company's 1994 Form
10-KSB.
Nine Months Ended
Year Ended December 31, September 30,
1990 1991 1992 1993 1994 1994 1995
(In thousands, except per
share data)
Income Statement Data:
(a)
Revenue $7,844 $8,488 $13,348 $16,204 $28,728 $19,135 $33,443
Operating expenses 6,859 6,862 9,793 11,209 17,224 12,002 19,917
General and
administrative
expenses 643 861 1,860 2,067 4,485 2,749 4,812
Income from
operations 342 765 1,695 2,928 7,019 4,384 8,714
Interest expense - 180 891 1,303 1,881 1,238 2,266
Other income
(expenses) 52 26 107 49 (126) (74) 126
Income before income
taxes and extraordinary
gain 394 611 911 1,674 5,012 3,072 6,574
Provision for income
taxes 89 159 222 721 2,245 1,381 2,716
Income before
extraordinary
gain 305 452 689 953 2,767 1,691 3,858
Extraordinary gain
from prepayment of
debt at a discount - - - - 357 357 -
Net income 305 452 689 953 3,124 2,048 3,858
Preferred stock
dividends earned(b) 117 211 411 130 - - -
Income available to
common
stockholders $188 $241 $278 $823 $3,124 $2,048 $3,858
Earnings Per Share
Data: (a)(d)
Primary earnings
per share before
extraordinary gain $0.14 $0.17 $0.10 $0.21 $0.40 $0.29 $0.34
Fully diluted
earnings per share
before
extraordinary gain $0.14 $0.17 $0.10 $0.19 $0.36 $0.26 $0.33
Primary weighted
average shares 1,308 1,402 2,795 3,950 6,930 5,747 11,355
Fully diluted
weighted average
shares 1,308 1,402 2,795 4,740 7,685 6,528 11,564
Other Operating
Data: (a)
Depreciation and
amortization $167 $434 $1,805 $2,606 $3,802 $2,834 $4,566
EBITDA (c) $509 $1,199 $3,500 $5,534 $10,821 $7,218 $13,280
<PAGE>
December 31, As of September
1990 1991 1992 1993 1994 30, 1995
Balance Sheet
Data: (a)
Cash and cash
equivalents $250 $711 $1,153 $1,062 $4,677 $2,624
Total assets 4,548 9,456 32,277 35,257 88,148 113,523
Total debt 703 3,853 16,057 15,404 25,348 46,539
Total
stockholders'
equity 2,662 3,503 6,549 9,060 37,164 42,624
(a) The Company completed several acquisitions during the
periods presented. The most significant of the acquisitions
during this time include Barker Brothers Waste, Incorporated
in January 1991, FLL, Inc. in May 1992 and Victory and GEM in
July 1994. See Note 2 of the Notes to Consolidated Financial
Statements in the Company's 1994 Form 10-KSB.
(b) Dividends on the Company's Series A preferred shares and
Series B preferred shares were suspended after April 1, 1993
by agreement. In connection with the Company's public
offering on November 4, 1994, the Series B preferred shares
were redeemed and the Series A preferred shares were exchanged
for 425,200 shares of Common Stock plus warrants to purchase
42,656 shares of Common Stock. No preferred stock is
currently outstanding.
(c) EBITDA is defined as income from operations plus
depreciation and amortization and is relevant to an
understanding of the Company's performance because it reflects
the Company's ability to generate cash flows sufficient to
service fixed obligations. EBITDA should not be considered an
alternative to: (i) operating income (as determined in
accordance with generally accepted accounting principles) as
an indicator of the Company's operating performance; or (ii)
cash flows from operating activities (as determined in
accordance with generally accepted accounting principles) as a
measure of liquidity.
(d) On December 28, 1995, the Company effected a 5 for 3
stock split on its common stock. Both per share and weighted
average share information have been restated for all periods
to reflect the 5 for 3 stock split. As a result of the
restatement, presented per share and weighted average share
information will not be comparable to amounts disclosed in
documents previously filed with the Securities and Exchange
Commission.
SELLING STOCKHOLDERS
An aggregate of up to 2,473,361 Shares may be offered by
certain Selling Stockholders. The following table sets forth
certain information with respect to the Selling Stockholders.
The Company will not receive any of the proceeds from the sale
of these Shares. Based on information provided by the
Selling Stockholders, no Selling Stockholder owns 1% or more
of the Company's outstanding Common Stock prior to this
Offering, except as indicated below. Beneficial ownership
after the Offering will depend on the number of Shares sold by
each Selling Stockholder.
Shares Beneficially Shares to be
Owned Prior Beneficially
to Offering Shares Owned After
Being Offering
Offered
Selling Stockholder Number Percent Number Percent
Carlos Alberto Aguero 1,666 * 1,666 -- --
Maggie Aguero 3,896 * 3,896 -- --
Edward Albert, Jr. 23,405 * 23,405 -- --
Apex Investment Fund,
L.P. 423,441 3.0% 423,441 -- --
Henry Araujo 6,688 * 6,688 -- --
Bryan Barker 5,190 * 5,190 -- --
Fay Barker 2,956 * 2,956 -- --
Marvin Barker 10,098 * 10,098 -- --
Royce Barker 14,236 * 14,236 -- --
Scott Barker 2,626 * 2,626 -- --
Sylvia Bertot,
custodian for
Jeremy Alvarez 1,500 * 1,500 -- --
Allen R. Brodbeck 4,346 * 4,346 -- --
Roberto Burgaleta 1,480 * 1,480 -- --
Camelford Holdings,
Ltd. 8,708 * 8,708 -- --
Jerome Case 1,000 * 1,000 -- --
William Cunningham 2,778 * 2,778 -- --
Arturo Davila
Villareal 41,666 * 41,666 -- --
Michael J. Drury 61,360 * 61,360 -- --
Frank Faltus 6,666 * 6,666 -- --
Fred Helgeson 490 * 490 -- --
Environmental Venture
Fund Limited
Partnership 664,752 4.8% 664,752 -- --
First National Bank
of Terre Haute,
trustee for THAFNAB
and Company 3,055 * 3,055 -- --
Richard Friedman 16,666 * 16,666 -- --
Gregory Gibson 129,859 * 129,859 -- --
Nikki Gibson 721 * 721 -- --
Alva Leon Gilliam 12,988 * 12,988 -- --
Alva Lynn Gilliam 12,988 * 12,988 -- --
Gary Gilliam 12,988 * 12,988 -- --
Stephen Gilliam 12,988 * 12,988 -- --
Larry Henderson 28,125 * 28,125 -- --
Elisabeth Imhoff 1,515 * 1,515 -- --
Lawrence Kaplan 4,166 * 4,166 -- --
Stanley Kaplan 4,166 * 4,166 -- --
Michael E. King 17,741 * 17,741 -- --
Diana Lake 2,956 * 2,956 -- --
MBI, Inc. 13,581 * 13,581 -- --
Gates Maloney 1,480 * 1,480 -- --
Roger McDonald 1,666 * 1,666 -- --
Barry McFarland 3,913 * 3,913 -- --
Donald Moorehead, Jr. 833 * 833 -- --
Rolando Montoya 2,230 * 2,230 -- --
Lorna Moreno 5,573 * 5,573 -- --
Niurka Moreno 1,666 * 1,666 -- --
Sherry Nesler 26,650 * 26,650 -- --
Oakwood Holding Ltd. 4,396 * 4,396 -- --
Ana Rafaela Perez 1,666 * 1,666 -- --
John W. Perry 555 * 555 -- --
George Plews 11,890 * 11,890 -- --
Steven Preuett 2,230 * 2,230 -- --
Francisco A. Saavedra 2,956 * 2,956 -- --
Salcott Holdings, Ltd. 93,145 * 93,145 -- --
Kathleen F. Salopek 22,166 * 22,166 -- --
Timothy J. Salopek 22,166 * 22,166 -- --
Thomas Sands 1,666 * 1,666 -- --
Dallas Schnitizius 94,855 * 94,855 -- --
G. Michael Shannon 128,132 * 128,132 -- --
Sequoia Technology
Partners III 22,221 * 22,221 -- --
Anthony D. Smith, Sr. 14,166 * 14,166 -- --
Gershon Stern 8,333 * 8,333 -- --
Joel Stone 98,523 * 98,523 -- --
Raul E. Tamayo &
Carmen Tamayo 2,230 * 2,230 -- --
The Productivity
Fund L.P. 320,512 2.3% 320,512 -- --
Universal Partners L.P. 8,333 * 8,333 -- --
Wightman
Environmental, Inc. 5,758 * 5,758 -- --
Total 2,473,361 17.8% 2,473,361 -- --
The number of Shares which may actually be sold by the
Selling Stockholders will be determined from time to time by them
and will depend upon a number of factors, including the price of
the Shares from time to time. Because the Selling Stockholders
may offer all or none of the Shares that they hold and because
the offering contemplated by this Prospectus is not being
underwritten, no estimate can be given as to the number of Shares
that will be held by the Selling Stockholders.
There are no material relationships between any of the
Selling Stockholders and the Company or any of its predecessors
or affiliates, nor have any such material relationships existed
within the past three years, except as follows:
Allen R. Brodbeck, Arturo Davila Villareal, Michael J.
Drury,
Steven Pruett, Timothy J. Salopek, Dallas Schnitzius and G.
Michael Shannon are employees of the Company or its subsidiaries.
Environmental Venture Fund Limited Partnership, Apex
Investment Fund, L.P., The Productivity Fund Limited Partnership
(referred to collectively as the "Venture Investors"), Mr.
Aguero, Mr. Volini (collectively with the Venture Investors
referred to as the "Agreeing Stockholders"), the Company and Mr.
Maxwell entered into an agreement (the "Stockholders' Agreement")
dated as of May 10, 1994. The Stockholders' Agreement contains a
voting agreement whereby the parties agree to take such actions
as necessary to maintain the membership of the Board of Directors
to include Messrs. Aguero, Volini, Carlson, Haider and the
designee of the Venture Investors (currently Mr. Maxwell). The
Stockholders' Agreement grants the Agreeing Stockholders rights
of first refusal to shares of Common Stock offered by other
Agreeing Stockholders, under certain circumstances. In addition,
upon the death of either Messrs. Aguero or Volini, the Company is
granted the right to purchase the shares held by the decedent
party's estate or legal representative, based upon the average
closing price as quoted on the Nasdaq National Market for the 15
trading days ending one week prior to the date of repurchase (the
"Repurchase Price"). Further, upon the death of either Messrs.
Aguero or Volini, the decedent party's shares of Common Stock
upon the quotient obtained by dividing proceeds of any life
insurance policy on the decedent by the Repurchase Price. The
Company is the beneficiary of certain key man insurance on the
life of Mr. Aguero, the proceeds of which would be used to fund
any repurchase obligations with respect to Common Stock owned by
Mr. Aguero. Finally, the Stockholders' Agreement grants the
Venture Investors an unlimited number of demand registration
rights covering all of the shares of Common Stock owned by the
Venture Investors.
The Company purchased materials totaling approximately $2.1
million from Mid-America Lining Co. since 1994. Mr. Brodbeck
owns 25.0% of the outstanding equity of Mid-America Lining Co.
The Company purchased certain assets from Mr. Salopek and
his spouse, Mrs. Kathy Salopek, in exchange for 26,600 shares of
Common Stock on October 19, 1994. The purchased assets include
all stock of WPP Services, Inc. owned by Mr. Salopek and his
spouse, his interest in the Gila Bend landfill development
project, and the right to assume Mr. Salopek's position in
certain other Latin American solid waste business ventures in
various stages of development. The Company also agreed to
reimburse Mr. Salopek for development expenses incurred
personally by Mr. Salopek at the Company's Costa Rican
operations. The shares of Common Stock exchanged for these
assets were issued in private transactions exempt from
registration under the federal securities laws.
In August 1995, the Company provided Mr. Salopek with 10.0%
of the outstanding shares of common stock of CWI Mexican Ventures
S.A. de C.V., parent company of Procesa. Pursuant to the terms
of Mr. Salopek's employment agreement, Mr. Salopek is entitled to
a Mexican Development Bonus equal to a 10% interest in any new
projects developed by the Company in Mexico. As a result, in
August 1995, Mr. Salopek received an effective interest equal to
8% of the outstanding shares of Procesa, leaving the Company with
a 72% interest in Procesa. The Company effectively acquired 72%
of the outstanding shares of Procesa after providing Mr. Salopek
with the bonus described above.
<PAGE>
DESCRIPTION OF CAPITAL 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,
14,044,262 of which shares were outstanding as of the date of
this Prospectus; (ii) 425,200 shares of preferred stock without
designation, par value of $5.64 per share, none of which were
issued and outstanding as of the date of this Prospectus; (iii)
119,000 shares of preferred stock without designation, par value
of $20.00 per share, none of which were issued and outstanding as
of the date of this Prospectus; and (iv) 100,000 Blank Check
Preferred Shares, par value $0.001 per share, none of which were
issued and outstanding as of the date of this Prospectus.
Common Stock
Each share of Common Stock is entitled to one vote. There
are no pre-emptive, subscription, conversion or redemption rights
pertaining to the shares of Common Stock. Stockholders are
entitled to receive such dividends as declared by the board of
directors out of assets legally available therefor and to share
ratably in the assets of the Company available upon liquidation.
The Certificate of Incorporation does not provide for
cumulative voting. Therefore, stockholders do not have the right
to aggregate their votes for the election of directors and,
accordingly, stockholders holding more than 50% of the shares of
Common Stock outstanding can elect all of the directors.
Preferred Stock
The Company is authorized to issue 425,200 shares of
preferred stock without designation, par value $5.64 per share,
and 119,000 shares of preferred stock without designation, par
value $20.00 per share. The determination of voting powers,
designations, preferences and relative, participating, optional
and other special rights, and qualifications, limitations or
restrictions relating to these shares of preferred stock is
subject to stockholder approval. As of the date of this
Prospectus, there were no shares of preferred stock outstanding.
The certificate of incorporation grants the board of
directors the right to cause the Company to issue, from time to
time, all or part of the Blank Check Preferred Shares remaining
undesignated in one or more series, and to fix the number of
Blank Check Preferred Shares and determine or alter for each
series, the voting powers, full, limited, or none, and other
designations, preferences, or relative, participating, optional
or other special rights and such qualifications, limitations, or
restrictions thereof. As of the date of this Prospectus, there
were no Blank Check Preferred Shares outstanding.
Transfer Agent
The Company's transfer agent is LaSalle National Trust,
N.A., 135 South LaSalle Street, Room 360, Chicago, Illinois
60603-4105.
Delaware Antitakeover Law
The Delaware Antitakeover Law prohibits certain "business
combinations" between a Delaware corporation, whose stock is
generally publicly-traded or held by more than 2,000
stockholders, and an "interested stockholder" of the corporation
for a three-year period following the date that such stockholder
became an interested stockholder, unless: (i) the corporation has
elected, in its certificate of incorporation, not to be governed
by the Delaware Antitakeover Law (the Company has not made such
an election); (ii) the business combination was approved by the
board of directors of the corporation before the other party to
the business combination became an interested stockholder; (iii)
upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the commencement of the transaction
(excluding voting stock owned by directors who are also officers
or held in employee benefit plans in which the employees do not
have a confidential right to tender or vote stock held by the
plan); or (iv) the business combination was approved by the board
of directors of the corporation and ratified by 66 % of the
voting stock which the interested stockholder did not own. The
three-year prohibition also does not apply to certain business
combinations proposed by an interested stockholder following the
announcement or notification of certain extraordinary
transactions involving the corporation and a person who had not
been an interested stockholder during the previous three years or
who became an interested stockholder with the approval of a
majority of the corporation's directors or who became an
interested stockholder prior to the amendment to the
corporation's certificate of incorporation to subject the
corporation to the Delaware Antitakeover Law. The term "business
combination" is defined generally to include mergers or
consolidations between a Delaware corporation and an interested
stockholder, transactions with an interested stockholder
involving the assets or stock of the corporation or its
majority-owned subsidiaries, and transactions which increase an
interested stockholder's percentage ownership of stock. The term
"interested stockholder" is defined, generally, as those
stockholders who become beneficial owners of 15% or more of a
Delaware corporation's voting stock. See Risk Factors
Prohibitions Under the Delaware General Corporation Law
Restricting Certain Business Combinations.
These provisions could delay or frustrate the removal of
incumbent directors or a change in control of the Company. These
provisions also could discourage, impede, or prevent a merger,
tender offer or proxy contest, even if such an event would be
favorable to the interests of the stockholders.
Indemnification of Directors and Officers
Section 2 of Article Eighth of the Company's Certificate
of Incorporation provides for indemnification of the Company's
officers and directors to the fullest extent permitted by Section
145 of the Delaware General Corporation Law (the DGCL ).
Section 145 of the DGCL provides for indemnification of directors
and officers from and against expenses (including attorney s
fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal,
administrative or investigative claim or proceeding (including
civil actions brought as derivative actions by or in the right of
the corporation but only to the extent of expenses reasonably
incurred in defending or settling such action) in which they may
become involved by reason of being a director or officer of the
corporation if the director or officer acted in good faith and in
a manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and, in addition, in
criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If, in an action brought by or in the
right of the corporation, the director or officer is adjudged to
be liable for negligence or misconduct in the performance of his
duty, he will only be entitled to this indemnity as the court
finds to be proper. Persons who are successful in defense of any
claim against them are entitled to indemnification as of right
against expenses actually and reasonably incurred in connection
therewith. In all other cases, indemnification shall be made
(unless otherwise ordered by a court) only if the board of
directors, acting by a majority vote of a quorum of disinterested
directors, independent legal counsel or holders of a majority of
the shares entitled to vote, determines that the applicable
standard of conduct has been met. Section 145 also provides this
indemnity for directors and officers of a corporation who, at the
request of the corporation, act as directors, officers, employees
or agents of other corporations, partnerships or other
enterprises.
Section 1 of Article Eighth of the Company's Certificate
of Incorporation limits the liability of the Company's directors
to the Company or its stockholders to the fullest extent
permitted by the DGCL. Section 102(b)(7) of the DGCL provides
that personal monetary liabilities of a director for breaches of
his fiduciary duties as a director may not be eliminated with
regard to any breach of the duty of loyalty, failing to act in
good faith, intentional misconduct or knowing violation of law,
payment of an unlawful dividend, approval of an illegal stock
repurchase, or obtainment of an improper personal benefit. Such
a provision has no affect on the availability of equitable
remedies, such as an injunction or recision, for breach of
fiduciary duty.
The employment agreements of certain directors and officers
contain a provision similar to the provisions of the Certificate
of Incorporation. The Company maintains directors and officers
liability insurance that will insure against liabilities that
directors and officers of the Company may incur in such
capacities.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted for directors, officers and
controlling persons of the Company pursuant to the foregoing, or
otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
PLAN OF DISTRIBUTION
This Prospectus, as appropriately amended or supplemented,
may be used from time to time by the Selling Stockholder, or his
transferees, to offer and sell the Shares in transactions in
which the Selling Stockholder and any broker-dealer through whom
any of the Shares are sold may be deemed to be underwriters
within the meaning of the Securities Act. The Company will
receive none of the proceeds from any such sales. There
presently are no arrangements or understandings, formal or
informal, pertaining to the distribution of the Shares.
The Company anticipates that resales of the Shares by the
Selling Stockholders will be effected from time to time on the
open market in ordinary brokerage transactions on the Nasdaq
National Market ("Nasdaq"), on which the Common Stock is included
for quotation, in the over-the-counter market, or in private
transactions (which may involve crosses and block transactions).
The Shares will be offered for sale at market prices prevailing
at the time of sale or at negotiated prices and on terms to be
determined when the agreement to sell is made or at the time of
sale, as the case may be. The Shares may be offered directly,
through agents designated from time to time, or through brokers
or dealers. A member firm of the Nasdaq may be engaged to act as
the Selling Stockholder's agent in the sale of the Shares by the
Selling Stockholder and/or may acquire Shares as principal.
Member firms participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they
act as agent for the purchaser of such Shares, from such
purchaser), such commissions computed in appropriate cases in
accordance with the applicable rates of the Nasdaq, which
commissions may be at negotiated rates where permissible. Sales
of the Shares by the member firm may be made on the Nasdaq from
time to time at prices related to prices then prevailing. Any
such sales may be by block trade.
Participating broker-dealers may agree with the Selling
Stockholder to sell a specified number of shares at a stipulated
price per share and, to the extent such broker dealer is unable
to do so acting as agent for the Selling Stockholder to purchase
as principal any unsold shares at the price required to fulfill
the broker-dealer's commitment to the Selling Stockholder. In
addition or alternatively, shares may be sold by the Selling
Stockholder, and/or by or through the broker-dealers in special
offerings, exchange distributions, or secondary distributions
pursuant to and in compliance with the governing rules of the
Nasdaq, and in connection therewith commissions in excess of the
customary commission prescribed by the rules of such securities
exchange may be paid to participating broker-dealers, or, in the
case of certain secondary distributions, a discount or concession
from the offering price may be allowed to participating
broker-dealers in excess of such customary commission.
Broker-dealers who acquire shares as principal may thereafter
resell such Shares from time to time in transactions (which may
involve cross and block transactions and which may involve sales
to and through other broker-dealers, including transactions of
the nature described in the preceding two sentences) on the
Nasdaq, in negotiated transactions, or otherwise, at market
prices prevailing at the time of sale or at negotiated prices,
and in connection with such resales may pay to or receive
commissions from the purchasers of such shares.
Upon the Company's being notified by a Selling Stockholder
that a particular offer to sell the Shares is made, a material
arrangement has been entered into with a broker-dealer for the
sale of shares through a block trade, special offering, exchange
distribution, or secondary distribution, or any block trade has
taken place, to the extent required, a supplement to this
Prospectus will be delivered together with this Prospectus and
filed pursuant to Rule 424(b) under the Securities Act setting
forth with respect to such offer or trade the terms of the offer
or trade; including (i) the number of Shares involved, (ii) the
price at which the Shares were sold, (iii) any participating
brokers, dealers, agents or member firm involved, (iv) any
discounts, commissions and other items paid as compensation from,
and the resulting net proceeds to, the Selling Stockholder, (v)
that such broker-dealers did not conduct any investigation to
verify the information set out in this Prospectus, and (vi) other
facts material to the transaction.
Shares may be sold directly by the Selling Stockholders or
through agents designated by the Selling Stockholders from time
to time. Unless otherwise indicated in the supplement to this
Prospectus, any such agent will be acting on a best efforts basis
for the period of its appointment.
The Selling Stockholders and any brokers, dealers, agents,
member firm or others that participate with the Selling
Stockholders in the distribution of the Shares may be deemed to
be "underwriters" within the meaning of the Securities Act, and
any commissions or fees received by such persons and any profit
on the resale of the Shares purchased by such person may be
deemed to be underwriting commissions or discounts under the
Securities Act.
The Company may agree to indemnify the Selling Stockholders
as an underwriter under the Securities Act against certain
liabilities, including liabilities arising under the Securities
Act. Agents may be entitled under agreements entered into with
the Selling Stockholders to indemnification against certain civil
liabilities, including liabilities under the Securities Act.
The Selling Stockholders will be subject to the applicable
provisions of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, including without
limitation Rules 10b-2, 10b-6, and 10b-7, which provisions may
limit the timing of purchases and sales of any of the Shares by
the Selling Stockholders. All of the foregoing may affect the
marketability of the Shares.
The Company will pay substantially all the expenses incident
to this offering of the Shares by the Selling Stockholder to the
public other than brokerage fees, commissions and discounts of
underwriters, dealers or agents.
In order to comply with certain states' securities laws, if
applicable, the Shares will be sold in such jurisdictions only
through registered or licenses brokers or dealers. In addition,
in certain states the Shares may not be sold unless the Shares
have been registered or qualified for sale in such state or an
exemption from registration or qualification is available and the
Company or Selling Stockholders comply with the applicable
requirements.
LEGAL MATTERS
The validity of the Shares offered by this Prospectus has
been passed upon by Shefsky Froelich & Devine Ltd., Chicago,
Illinois.
EXPERTS
The consolidated financial statements of Continental Waste
Industries, Inc. as of December 31, 1994 and 1993 and for the
years ended December 31, 1994, 1993 and 1992 included in this
Prospectus have been audited by Arthur Andersen, LLP, independent
public accountants, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said report.
<PAGE>
No dealer, salesman or other person has
been authorized to give any information
or to make any representations other
than those contained or incorporated by
reference in this Prospectus, and if
given or made, such information or
representations must not be relied upon
as having been authorized by the
Company. Neither the delivery of this
Propsectus nor any sale made hereunder
shall under any circumstances create
any implication that there has been CONTINENTAL
no change in the affairs of the
Company since the date hereof. This WASTE INDUSTRIES,
Prospectus does not constitute an
offer or solicitation by anyone in any INC.
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
________________
_______________ 2,473,361
SHARES OF
TABLE OF CONTENTS COMMON STOCK
($0.0006 Par Value)
Page
Available Information 2
Documents Incorporated by Reference 2
The Company 3
Risk Factors 4
Selling Stockholders 9
Description of Capital Stock 12
Plan of Distribution 14
Legal Matters 16 January 18, 1996
Experts 16
<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Insurance and Distribution
The following sets forth the estimated expenses and costs in
connection with the issuance and distribution of securities being
registered hereby. All such expenses will be borne by the
Company.
Securities and Exchange Commission
Registration Fee $8,845
Accounting Fees and Expenses 1,000*
Legal Fees and Expenses 4,000*
Blue Sky Fees and Expenses 1,000*
Miscellaneous 1,330*
Total. . . . . . . . . . . . . . . $ 16,000*
_____________________
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 2 of Article Eighth of the Company's Certificate of
Incorporation provides for indemnification of the Company's
officers and directors to the fullest extent permitted by Section
145 of the Delaware General Corporation Law (the DGCL ).
Section 145 of the DGCL provides for indemnification of directors
and officers from and against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal,
administrative or investigative claim or proceeding (including
civil actions brought as derivative actions by or in the right of
the corporation but only to the extent of expenses reasonably
incurred in defending or settling such action) in which they may
become involved by reason of being a director or officer of the
corporation if the director or officer acted in good faith and in
a manner which he reasonably believed to be in or not opposed to
the best interest of the corporation and, in addition, in
criminal actions, if he had no reasonable cause to believe his
conduct to be unlawful. If, in an action brought by or in the
right of the corporation, the director or officer is adjudged to
be liable for negligence or misconduct in the performance of his
duty, he will only be entitled to this indemnity as the court
finds to be proper. Persons who are successful in defense of any
claim against them are entitled to indemnification as of right
against expenses actually and reasonably incurred in connection
therewith. In all other cases, indemnification shall be made
(unless otherwise ordered by a court) only if the board of
directors, acting by a majority vote of a quorum of disinterested
directors, independent legal counsel or holders of a majority of
the shares entitled to vote, determines that the applicable
standard of conduct has been met. Section 145 also provides this
indemnity for directors and officers of a corporation who, at the
request of the corporation, act as directors, officers, employees
or agents of other corporations, partnerships or other
enterprises.
Section 1 of Article Eighth of the Company's Certificate
of Incorporation limits the liability of the Company's directors
to the Company or its stockholders to the fullest extent
permitted by the DGCL. Section 102(b)(7) of the DGCL provides
that personal monetary liabilities of a director for breaches of
his fiduciary duties as a director may not be eliminated with
regard to any breach of the duty of loyalty, failing to act in
good faith, intentional misconduct or knowing violation of law,
payment of an unlawful dividend, approval of an illegal stock
repurchase, or obtainment of an improper personal benefit. Such
a provision has no affect on the availability of equitable
remedies, such as an injunction or recision, for breach of
fiduciary duty.
The employment agreements of certain directors and
officers contain a provision similar to the provisions of the
Certificate of Incorporation.
The Company maintains directors and officers liability
insurance that will insure against liabilities that directors and
officers of the Company may incur in such capacities.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted for directors, officers and
controlling persons of the Company pursuant to the foregoing, or
otherwise, the Company has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
Item 16. Exhibits and Financial Statement Schedules
Exhibit
No. Description
5 Opinion of Shefsky Froelich & Devine Ltd. regarding
the legality of the Shares.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Shefsky Froelich & Devine Ltd. (included in
Exhibit 5 above).
24 Power of Attorney (included on signature page of
registration statement).
<PAGE>
Item 17. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement 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 the purpose of determining any liability
under the Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing
of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue. <PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this 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 18th day of January, 1996.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Carlos E. Aguero
Carlos E. Aguero
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, as
amended, this 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
/s/ * Chairman of the Board and January 18, 1996
Thomas A. Volini Chief Operating Officer
(Principal Executive Officer)
/s/ * President, Chief Executive January 18, 1996
Carlos E. Aguero Officer and Director
(Principal Executive Officer)
/s/ * Senior Vice President and January 18, 1996
Michael J. Drury (Chief Financial Officer and
Chief Accounting Officer)
/s/ * Director January 18, 1996
Bret R. Maxwell
/s/ * Director January 18, 1996
Donald H. Haider
/s/ * Director January 18, 1996
Richard J. Carlson
Carlos E. Aguero, the undersigned attorney-in-fact, by
signing his name below, does hereby sign this amendment to the
Registration Statement on behalf of the above-indicated Officers
and Directors of Continental Waste, Inc. (constituting all the
Directors) pursuant to powers of attorney executed by such
persons and heretofore filed with the Securities and Exchange
Commission.
*By: /s/ Carlos E. Aguero
As attorney-in-fact
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Documents Page
5* Opinion of Shefsky Froelich & Devine Ltd.
regarding the legality of the Shares. .
23.1 Consent of Arthur Andersen LLP. . . . .
23.2* Consent of Shefsky Froelich & Devine Ltd.
(included in Exhibit 5 above)..
24* Power of Attorney (included on signature
page of registration statement) . .
* Previously filed
<PAGE>
EXHIBIT 23.1 Consent of Arthur Andersen LLP
[Letterhead of ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
report dated February 20, 1995, included in Continental Waste
Industries, Inc.'s Form 10-KSB for the year ended December 31,
1994 and to all references to our Firm included in or made a part
of this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
January 17, 1996
