<PAGE>
As filed with the Securities and Exchange Commission on August 8, 1997
Registration No. 333-28491
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
(SUBSTITUTING FORM S-3 IN LIEU OF FORM S-1)
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN DISPOSAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 4953 13-3858494
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization
745 McClintock Drive
Suite 230
Burr Ridge, Illinois 60521
(630) 655-1105
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Ann L. Straw, Esq.
American Disposal Services, Inc.
745 McClintock Drive
Suite 230
Burr Ridge, Illinois 60521
(630) 655-1105
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Stephen W. Rubin, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
Approximate date of commencement of proposed sale of securities to the
public: From time to time after the Registration Statement becomes 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 (the "Securities Act") 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, 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. / /
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.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
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PROSPECTUS
SUBJECT TO COMPLETION, DATED AUGUST 8, 1997
2,500,000 SHARES
AMERICAN DISPOSAL SERVICES, INC.
COMMON STOCK
This Prospectus relates to an aggregate of 2,500,000 shares ("Shares") of
Common Stock, par value $.01 per share (the "Common Stock"), of American
Disposal Services, Inc., a Delaware corporation (the "Company"), which may be
offered for sale by the Company from time to time to acquire one or more
businesses in negotiated transactions not involving any public offering. This
Prospectus will be supplemented to furnish the information necessary for a
particular negotiated transaction and the Registration Statement of which this
Prospectus is a part will be amended, where appropriate, to supply information
concerning an acquisition.
This Prospectus also relates to the offer for sale or other distribution of
Shares by persons (the "Selling Stockholders") who will acquire such shares in
the acquisitions of the businesses. Such shares may be sold or distributed from
time to time by or for the account of the Selling Stockholders through
underwriters or dealers, through brokers or other agents, or directly to one or
more purchasers, at market prices prevailing at the time of sale or at prices
otherwise negotiated. This Prospectus also may be used, with the Company's
prior consent, by donees of the Selling Stockholders, or by other persons
acquiring Shares and who wish to offer and sell such Shares under circumstances
requiring or making desirable its use. The Company will receive no portion of
the proceeds from the sale of the Shares offered hereby and will bear certain
expenses incident to their registration. See "Selling Stockholders" and "Plan
of Distribution."
The Common Stock is quoted on the Nasdaq National Market under the symbol
"ADSI." On August 6, 1997, the last reported sales price for the Common Stock
as reported by NASDAQ was $30.50 per share.
SEE "RISK FACTORS" ON PAGE 6 FOR INFORMATION CONCERNING CERTAIN RISKS
ASSOCIATED WITH AN INVESTMENT IN ANY OF THE SHARES.
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 August __, 1997.
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No dealer, salesperson or other person has been authorized to give any
information or to make any representations other than those contained in or
incorporated by reference in this Prospectus in connection with the offer made
by this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or the Selling
Stockholders. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
not been any change in the facts set forth in this Prospectus or in the affairs
of the Company since the date hereof. This Prospectus does not constitute an
offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
TABLE OF CONTENTS
Page
Available Information..........................................................2
Incorporation of Certain Documents by Reference................................3
The Company....................................................................4
Risk Factors...................................................................6
Use of Proceeds...............................................................13
Selling Stockholders..........................................................13
Plan of Distribution..........................................................13
Description of Capital Stock..................................................15
Legal Matters.................................................................17
Experts.......................................................................17
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, and in accordance therewith, files reports
and other information with the Securities and Exchange Commission (the
"Commission"). These reports and other information concerning the Company may
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the regional offices of the Commission located at Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661 and at Suite 1300, 7 World Trade Center, New
York, New York 10048. Copies of such material can also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon payment of the fees prescribed by the Commission.
Reports, proxy, information statements and other information regarding the
Company filed electronically with the Commission are available on the
Commission's web site (http://www.sec.gov).
The Company has filed with the Commission a Registration Statement (which
term shall encompass any amendments and exhibits thereto) under the Securities
Act with respect of the Shares offered hereby. This Prospectus, which forms a
part of such Registration Statement, does not contain all the information set
forth in such Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. Statements made in
this Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete; with respect to each such contract,
agreement or other document filed as an exhibit to such Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety by
such reference. Any interested parties may inspect such Registration Statement,
without charge, at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and may obtain copies of all
or any part of it from the Commission upon payment of the fees prescribed by the
Commission. Neither the delivery of this Prospectus or any Prospectus
Supplement nor any sales made hereunder or thereunder shall under any
circumstances create any implication
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that the information contained herein or therein is correct as of any time
subsequent to the date hereof or thereof or that there has been no change in the
affairs of the Company since the date hereof or thereof.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated by reference and made
a part of this Prospectus: (i) the Company's annual Report on Form 10-K/A for
the fiscal year ended December 31, 1996; (ii) the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997; (iii) all other reports filed
pursuant to Section 13(a) or 15(d) or the Exchange Act since December 31, 1996,
specifically including the Company's Current Reports on Form 8-K dated April 1,
1997 and May 15, 1997 and (iv) the Company's Proxy Statement dated April 21,
1997 relating to the 1997 Annual Meeting of Stockholders held on May 28, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the Offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document or information incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is, or is
deemed to be, incorporated herein by reference, modifies or supersedes such
statement. Any such statement so modified or supersede shall not be deemed,
except as so modified to superseded, to constitute a part of this Prospectus.
The making of a modifying or superseding statement shall not be deemed an
admission that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement or a material fact or an omission to
state a material fact that is required to be stated or that is necessary to make
statement not misleading in light of the circumstances in which it was made.
THE COMPANY UNDERTAKES TO PROVIDE, WITHOUT CHARGE, TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED,
UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY AND ALL OF THE
DOCUMENTS OR INFORMATION REFERRED TO ABOVE THAT HAS BEEN OR MAY BE INCORPORATED
BY REFERENCE IN THE PROSPECTUS (EXCLUDING EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH
EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE). REQUESTS SHOULD BE
DIRECTED TO ANN L. STRAW, SECRETARY, AMERICAN DISPOSAL SERVICES, INC., 745
MCCLINTOCK DRIVE, SUITE 230, BURR RIDGE, ILLINOIS 60521, TELEPHONE: (630)
655-1105.
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THE COMPANY
American Disposal Services, Inc. is a regional, integrated, non-hazardous
solid waste services company that provides solid waste collection, transfer and
disposal services primarily in the Midwest and in the Northeast. The Company
owns six solid waste landfills and owns, operates or has exclusive contracts to
receive waste from 13 transfer stations. As of August 7, 1997, the Company's
landfills and transfer stations are supported by its collection operations,
which currently serve over 264,800 residential, commercial and industrial
customers. The Company has adopted an acquisition-based growth strategy and
intends to continue its expansion, generally in its existing and proximate
markets.
The Company began its operations in the Midwest and currently has
operations in Arkansas, Connecticut, Illinois, Indiana, Kansas, Massachusetts,
Missouri, Ohio, Oklahoma, Pennsylvania and Rhode Island. The Company's principal
growth strategy is to identify and acquire solid waste landfills located in
markets that are within approximately 125 miles of significant metropolitan
centers and to secure dedicated waste streams for such landfills by acquisition
or development of transfer stations and acquisition of collection companies. The
Company expects the current consolidation trends in the solid waste industry to
continue as many independent landfill and collection operators lack the capital
resources, management skills and technical expertise necessary to operate in
compliance with increasingly stringent environmental and other governmental
regulations. Further, several of the national waste management companies have
announced their intention to focus on their core markets and have recently begun
to divest certain of their non-core solid waste assets, which should present the
Company with additional acquisition opportunities. Due in part to these trends,
the Company believes that significant opportunities exist to expand and further
integrate its operations in each of its existing markets.
The Company's operating program generally involves a four-step process:
(i) acquiring solid waste landfills in its target markets; (ii) securing captive
waste streams for its landfills through the acquisition or development of
transfer stations serving those markets, through acquisitions of collection
companies and by entering into long-term contracts directly with customers or
collection companies; (iii) making "tuck-in" acquisitions of collection
companies to further penetrate its target markets; and (iv) integrating these
businesses into the Company's operations to achieve operating efficiencies and
economies of scale. As part of its acquisition program, the Company has, and in
the future may, as specific opportunities arise, evaluate and pursue
acquisitions in the solid waste collection and disposal industry that do not
strictly conform to the Company's four-step operating program.
The implementation of the Company's operating program is substantially
complete in its Missouri and Ohio regions. As of June 30, 1997, in the Missouri
region (which also includes Arkansas, Kansas and Oklahoma), the Company has
acquired one landfill and 15 collection companies and has acquired, developed or
secured exclusive contracts with six transfer stations. As of June 30, 1997, in
the Ohio region, the Company has completed the acquisition of one landfill and
12 collection companies and has acquired, developed or secured exclusive
contracts with four transfer stations. The Company is in the second phase of its
operating program in its Illinois, western Pennsylvania and Rhode Island
regions, as well as in the southwestern Indiana region, where the Company began
its operations in April 1997.
The Company's operating strategy emphasizes the integration of its solid
waste collection and disposal operations and the internalization of waste
collected. One of the Company's goals is for its captive waste streams (which
include the Company's collection operations and third-party haulers operating
under long-term collection contracts) to provide in excess of 50% of the volume
of solid waste disposed of at each of its landfills. During the year ended
December 31, 1996, the Company's captive waste constituted an average of
approximately 61% of the solid waste disposed of at its landfills. The Company
plans to continue
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to pursue its acquisition-based growth strategy to increase the internalization
of waste collected and expand its presence in its existing and proximate
markets.
The Company's principal executive offices are located at 745 McClintock
Drive, Suite 230, Burr Ridge, Illinois 60521, and its telephone number is (630)
655-1105.
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RISK FACTORS
An investment in the shares of Common Stock being offered by this
Prospectus involves a high degree of risk. In addition, this Prospectus contains
forward-looking statements that involve risks and uncertainties. Discussions
containing such forward-looking statements may be found in the material set
forth under "The Company" and "Risk Factors," as well as in the Prospectus
generally. The Company's actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including those set forth in the following risk factors and elsewhere in this
Prospectus. Accordingly, prospective investors should consider carefully the
following risk factors, in addition to the other information concerning the
Company and its business contained in this Prospectus, before purchasing the
shares of Common Stock offered hereby.
Ability to Manage Growth
The Company's goal is to increase the scale of its operations significantly
through the acquisition of other solid waste businesses and through internal
growth. Consequently, the Company may experience periods of rapid growth with
significantly increased staffing level requirements. Such growth could place a
significant strain on the Company's management and on its operational, financial
and other resources. The Company's ability to maintain and manage its growth
effectively will require it to expand its management information systems
capabilities and improve its operational and financial systems and controls.
Moreover, the Company will need to attract, train, motivate, retain and manage
its senior managers, technical professionals and other employees. Any failure to
expand its management information system capabilities, to implement and improve
its operational and financial systems and controls or to recruit appropriate
additional personnel in an efficient manner at a pace consistent with the
Company's business growth would have a material adverse effect on the Company's
business, financial condition and results of operations.
Availability of Additional Acquisition Targets; Integration of Future
Acquisitions
The Company's ongoing acquisition program is a key element of its
acquisition-based growth strategy for expanding its solid waste management
services. Consequently, the future growth of the Company depends in large part
upon the successful continuation of this acquisition program. The Company may
encounter substantial competition in its efforts to acquire landfills, transfer
stations and collection companies. There can be no assurance that the Company
will succeed in locating or acquiring appropriate acquisition candidates at
price levels and on terms and conditions that the Company considers appropriate.
In addition, if in the future the Company is successful in acquiring targeted
companies, it will need to integrate these acquired companies into the Company's
operations. There can be no assurance that the Company will successfully
integrate future acquisitions into its operations.
History of Losses and Working Capital Deficits; Integration of Completed
Acquisitions
The Company has recorded net losses to common stockholders of approximately
$2.4 million, $3.7 million and $370,000 during the fiscal years ended December
31, 1994, 1995 and 1996, respectively, and has had working capital deficits in
the past. The financial position and results of operations of the Company will
depend to a large extent on the Company's ability to integrate effectively the
operations of the companies it has acquired from January 1993 to date and to
realize expected efficiencies and economies of scale from such acquisitions.
There can be no assurance that the Company's efforts to integrate these
operations will be effective, that expected efficiencies and economies of scale
will be realized or that the Company will be able to consolidate successfully
its operations. The failure to achieve any of these results could have a
material adverse effect on the Company's business, financial condition and
results of operations.
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Significant Leverage
Historically, the Company has incurred significant debt obligations in
connection with financing its acquisitions and business growth. The Company has
a $200 million credit facility with ING (U.S.) Capital Corporation, as
administrative agent, Morgan Guaranty Trust Company of New York, as syndication
agent, Union Bank of California, N.A., as documentation agent, BHF-Bank
Aktiengesellschaft, as co-agent, and Bank of America Illinois, as co-agent (the
"Credit Facility"). As of March 31, 1997, the Company's consolidated
indebtedness was $106.8 million, its consolidated total assets were $186.5
million and its stockholders' equity was $58.5 million. The Company's ability to
meet its debt service obligations will depend upon its future performance,
which, in turn, will be subject to general economic conditions and to financial,
business and other factors affecting the operations of the Company, many of
which are beyond the Company's control. If the Company fails to generate
sufficient cash flow to repay its debt, the Company may be required to refinance
all or a portion of its existing debt or to obtain additional financing. There
can be no assurance that such refinancing or any additional financing could be
obtained on terms favorable to the Company or at all.
Highly Competitive Industry
The solid waste collection and disposal business is highly competitive and
requires substantial amounts of capital. The Company competes with numerous
solid waste management companies, many of which are significantly larger and
have greater financial resources than the Company. The Company also competes
with those counties, municipalities and solid waste districts that maintain
their own waste collection and disposal operations. These counties,
municipalities and solid waste districts may have financial advantages due to
the availability to them of user fees, charges or tax revenues and the greater
availability to them of 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. There can be no assurance that the
Company will be able to compete successfully.
Funding of Future Capital Requirements
The Company's acquisition-based growth strategy has resulted in a steady
increase in its capital requirements, and such increase may continue in the
future as the Company pursues its strategy. The Company has incurred working
capital deficits in the past, and there can be no assurance that its available
working capital will be sufficient in the future as it pursues its growth
strategy. To the extent that internally generated cash and cash available under
the Credit Facility are not sufficient to provide the cash required for future
operations, capital expenditures, acquisitions, debt repayment obligations and
financial assurance obligations, the Company will require additional equity or
debt financing in order to provide such cash. There can be no assurance,
however, that such financing will be available or, if available, will be on
terms satisfactory to the Company. Where appropriate, the Company may seek to
minimize the use of cash to finance its acquisitions by using capital stock,
assumption of indebtedness or notes. However, there can be no assurance the
owners of the businesses the Company may wish to acquire will be willing to
accept non-cash consideration in whole or in part.
Dependence on Third Party Collection Operations
A portion of the solid waste delivered to the Company's landfills is
delivered by third party collection companies under informal arrangements or
without long-term contracts. If these third parties discontinued their
arrangements with the Company and if the Company were unable to replace these
third party arrangements, the Company's business, financial condition and
results of operations might be materially adversely affected.
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Limitations on Internal Expansion
The Company's operating program depends on its ability to expand and
develop its landfills, transfer stations and collection operations. The process
of obtaining required permits and approvals to operate or expand solid waste
management facilities, including landfills and transfer stations, has become
increasingly difficult and expensive, often taking several years, requiring
numerous hearings and compliance with zoning, environmental and other regulatory
requirements, and often being subject to resistance from citizen or other
groups. There can be no assurance that the Company will be successful in
obtaining the permits it requires or that such permits will not contain onerous
terms and conditions. An inability to receive such permits and approvals could
have a material adverse effect on the Company's business, financial condition
and results of operations. See "--Extensive Environmental and Land Use Laws and
Regulations." In some areas, suitable land may be unavailable for new landfill
sites. There can be no assurance that the Company will be successful in
obtaining new landfill sites or expanding the permitted capacity of its current
landfills once its landfill capacity has been consumed. In such event, the
Company could be forced to dispose of collected waste at landfills operated by
its competitors, which could have a material adverse effect on the Company's
landfill revenues and collection expenses.
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 and cleaning up the
environment. These laws and regulations affect the Company's business in many
ways, including as set forth below.
Extensive Permitting Requirements. In order to develop and operate a
landfill or other solid waste management facility, it is necessary to obtain and
maintain in effect one or more facility permits and other governmental
approvals, including those related to zoning, environmental and land use. In
addition, the Company may be required to obtain similar permits and approvals in
order to expand its existing landfill and solid waste management operations.
These permits and approvals are difficult and time consuming to obtain and are
frequently subject to community opposition, opposition by various local elected
officials or citizens and other uncertainties. In addition, after an operating
permit for a landfill or other facility is obtained, the permit may be subject
to modification or revocation by the issuing agency, and it may be necessary to
obtain periodically a renewal of the permit, which may reopen opportunities for
opposition to the permit. Moreover, from time to time, regulatory agencies may
delay the review or grant of these required permits or approvals or may modify
the procedures or increase the stringency of the standards applicable to its
review or grant of such permits or approvals. In addition, the Company may not
be able to ensure that its landfill operations are included and remain in the
solid waste management plan of the state or county in which such operations are
conducted. The Company may also have difficulty obtaining host agreements with
counties or local communities, or existing host communities may demand
modifications of existing host agreements in connection with planned expansions,
either of which could adversely affect the Company's operations and increase the
Company's costs and reduce its margins. 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,
including permits or approvals required for planned landfill expansions, and the
failure by the Company to obtain or maintain in effect a permit significant to
its business could materially adversely affect the Company's business, financial
condition and results of operations.
Design, Operation and Closure Requirements. The design, operation and
closure of landfills are subject to extensive regulations. 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
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Recovery Act of 1976 ("RCRA"). The Subtitle D Regulations generally became
effective on October 9, 1993 (except for new financial assurance requirements,
which became effective April 9, 1997). The Subtitle D Regulations require all
states to adopt regulations regarding landfill design, operation and closure
requirements that are as stringent as, or more stringent than, the Subtitle D
Regulations. All states in which the Company's landfills are located have in
place extensive landfill regulations consistent with the Subtitle D
requirements. These federal and state regulations require the Company to design
the landfill in accordance with stringent technical requirements, monitor
groundwater, post financial assurances, and fulfill landfill closure and
post-closure obligations. These regulations could also require the Company to
undertake investigatory, remedial and monitoring activities, to curtail
operations or to close a landfill temporarily or permanently. Furthermore,
future changes in these regulations may require the Company to modify,
supplement, or replace equipment or facilities at costs which may be
substantial.
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
such laws and regulations, or to impose liability on the Company under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
("CERCLA") 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, or at sites to which it transported waste, including
groundwater or soil contamination. The Company could incur substantial legal
expenses during the course of the aforementioned proceedings, and the adverse
outcome of one or more of these proceedings could materially adversely affect
the Company's business, financial condition and results of operations.
During the ordinary course of its operations, the Company has from time to
time received, and expects that it may in the future receive, citations or
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 result in one or more of the
adverse consequences to the Company described below under "Potential
Liabilities."
Potential Liabilities. There may be various adverse consequences to the
Company in the event that a facility owned or operated by the Company (or a
predecessor owner or operator whose liabilities the Company may have acquired
expressly or under successor liability theories) causes environmental damage, in
the event that waste transported by the Company (or a predecessor) causes
environmental damage at another site, in the event that the Company fails (or a
predecessor failed) to comply with applicable environmental and land use laws
and regulations or the terms of a permit or outstanding consent order or in the
event the Company's owned or operated facility or the soil or groundwater
thereunder is or becomes contaminated. 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) at its landfill sites or that its landfills or other facilities
or other Company-owned or operated facilities caused to adjacent landowners or
others or environmental damage at another site associated with waste transported
by the Company; the imposition of liability on the Company under CERCLA or under
comparable state laws; and criminal liability for the Company or its officers.
Any of the
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foregoing could materially adversely affect the Company's business, financial
condition and results of operations.
As described under "Business--Environmental Regulations," CERCLA and
analogous state laws impose retroactive strict joint and several liability on
various parties that are, or have been, associated with a site from which there
has been, or is threatened, a release of any hazardous substance (as defined by
CERCLA) into the environment. Liability under RCRA, CERCLA and analogous state
laws may include responsibility for costs of site investigations, site cleanup,
site monitoring, natural resources damages and property damages. Liabilities
under RCRA, CERCLA and analogous state laws can be very substantial and, if
imposed upon the Company, could materially adversely affect the Company's
business, financial condition and results of operations.
In the ordinary course of its landfill and waste management operations and
in connection with its review of landfill and other operations to be acquired,
the Company has discovered at one landfill, and may in the future discover at
other landfills or waste management facilities, indications of groundwater
contamination. In such events, the Company would seek or be required to
determine the magnitude and source of the problem and, if appropriate or
required by applicable regulations, to design and implement measures to remedy,
or halt the spread of, the contamination. There can be no assurance, however,
that contamination discovered at a landfill or at other Company sites will not
result in one or more of the adverse consequences to the Company described
above.
Type, Quantity and Source Limitations. Certain permits and approvals may
limit the types of waste that may be accepted at a landfill or the 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 importation of out-of-state
waste or otherwise discriminate against out-of-state waste. Generally,
restrictions on the importation of out-of-state waste have not withstood
judicial challenge. However, from time to time federal legislation is proposed
which 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. Although such legislation has not yet
been adopted by Congress, if this or similar legislation is enacted, states in
which the Company operates landfills could act to limit or prohibit the
importation of out-of-state waste. Such state actions could materially adversely
affect landfills within those states that receive a significant portion of waste
originating from out-of-state.
In addition, certain states and localities may for economic or other
reasons restrict the exportation of waste from their jurisdiction or require
that a specified amount of waste be disposed of at facilities within their
jurisdiction. In 1994, the United States Supreme Court held unconstitutional,
and therefore invalid, a local ordinance that sought to impose flow controls on
taking waste out of the locality. However, certain state and local jurisdictions
continue to seek to enforce such restrictions and, in certain cases, the Company
may elect not to challenge such restrictions based upon various considerations.
In addition, the aforementioned proposed federal legislation, if adopted, could
allow states and localities to impose certain flow control restrictions. These
restrictions could result in the volume of waste going to landfills being
reduced in certain areas, which may materially 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. If the
Company were unable to pass such higher costs through to its customers, the
Company's business, financial condition and results of operations could be
materially adversely affected.
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Limited Operating History
The Company began operating as a consolidated entity effective as of
January 1, 1996. Prior to 1996, the Company's operations were conducted by ADS,
Inc. ("ADS") and County Disposal, Inc. ("CDI"), two subsidiaries of the Company,
the operations of which were acquired by the Company's stockholders in 1993 and
1995, respectively. Accordingly, the Company has a limited history of operating
as a consolidated entity and may experience difficulties as it integrates the
operations of its subsidiaries.
Potential Liabilities Associated with Acquisitions
The businesses acquired by the Company may have liabilities that the
Company did not discover or may have been unable to discover during its
pre-acquisition investigations, including liabilities arising from environmental
contamination or non-compliance by prior owners with environmental laws or
regulatory requirements, and for which the Company, as a successor owner or
operator, may be responsible. Any indemnities or warranties, due to their
limited scope, amount, or duration, the financial limitations of the indemnitor
or warrantor or other reasons, may not fully cover such liabilities.
Dependence on Senior Management
The Company is highly dependent on 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, financial condition and results of operations.
In an effort to minimize this risk, the Company has entered into employment
contracts with certain members of senior management. The Company does not
maintain "key man" life insurance with respect to members of senior management
except for a $2.0 million policy maintained on the Company's President.
Limits on Insurance Coverage
There can be no assurance that the Company's pollution liability insurance
will provide sufficient coverage in the event an environmental claim were made
against the Company or that the Company will be able to maintain in place such
insurance at reasonable costs. An uninsured or underinsured claim of sufficient
magnitude could have a material adverse effect on the Company's business,
financial condition and results of operations.
Incurrence of Charges Related to Capitalized Expenditures
In accordance with generally accepted accounting principles, the Company
capitalizes certain expenditures and advances relating to 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's policy is to charge 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 that is not or not expected to be
successfully completed. Therefore, the Company may be required to incur a charge
against earnings in future periods, which charge, depending upon the magnitude
thereof, could materially adversely affect the Company's business, financial
condition and results of operations.
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Use of Alternatives to Landfill Disposal
Alternatives to landfill disposal, such as recycling and composting, are
increasingly being used. In addition, incineration is an alternative to landfill
disposal in certain of the Company's markets. There also has been an increasing
trend at the state and local levels to mandate recycling and waste reduction at
the source and to prohibit the disposal of certain type of wastes, such as yard
wastes, at landfills. These developments may result in the volume of waste going
to landfills being reduced in certain areas, which may 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. For example, Illinois, Ohio
and Pennsylvania, states in which the Company operates landfills, have adopted
bans on the disposal of yard waste or leaves in landfills located in those
states, and all of the states in which the Company operates landfills have
adopted rules restricting or limiting disposal of tires at landfills. In
addition, each of the states in which the Company operates landfills has adopted
plans or requirements which set goals for specified percentages of certain solid
waste items to be recycled. These recycling goals are being phased in over the
next few years. These alternatives, if and when adopted and implemented, may
have a material adverse effect on the business, financial condition and results
of operations of the Company.
Ability to Meet Financial Assurance Obligations
The Company is required to post a performance bond or a bank letter of
credit or to provide other forms of financial assurance in connection with
closure and post-closure obligations with respect to landfills or its other
solid waste management operations and may be required to provide such financial
assurance in connection with municipal residential collection contracts. If the
Company were unable to obtain surety bonds in sufficient amounts, or to provide
other required forms of financial assurance, it would be unable to remain in
compliance with the Subtitle D Regulations or comparable state requirements and,
among other things, might be precluded from entering into certain municipal
collection contracts and obtaining or holding landfill operating permits.
Seasonality
The Company's revenues tend to be somewhat lower in the winter months. This
is primarily attributable to the fact that: (i) the volume of waste relating to
construction and demolition activities tends to increase in the spring and
summer months; and (ii) the volume of industrial and residential waste in the
regions where the Company operates tends to decrease during the winter months.
In addition, particularly harsh weather conditions may delay the development of
landfill capacity and otherwise result in the temporary suspension of certain of
the Company's operations and could materially adversely affect the Company's
overall business, financial condition and results of operations.
Anti-Takeover Provisions
The Board of Directors may issue up to 5,000,000 shares of Preferred Stock
in the future without stockholder approval upon such terms as the Board of
Directors may determine. The rights of the holders of Common Stock will be
subject to, and may be adversely affected by, the rights of the holders of any
Preferred Stock that may be issued in the future. The issuance of Preferred
Stock, while providing flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of delaying or preventing a
change in control of the Company without further action by the stockholders. The
Company has no present plans to issue any shares of Preferred Stock. See
"Description of Capital Stock--Undesignated Preferred Stock." In addition, the
Company is subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which prohibits the Company from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in
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which the person became an interested stockholder, unless the business
combination is approved in a prescribed manner. The application of Section 203
also could have the effect of delaying or preventing a change of control of the
Company.
Absence of Dividends
The Company has never declared or paid dividends on its Common Stock and
does not anticipate paying dividends in the foreseeable future.
USE OF PROCEEDS
This Prospectus relates to Shares being offered for sale by the Company
from time to time to acquire one or more businesses in negotiated transactions
not involving any public offering. This Prospectus also relates to the offer
for sale or other distribution of Shares by Selling Stockholders who will
acquire such Shares in the acquisitions. The Company will not receive any
proceeds from the sale of the Shares by the Selling Stockholders but will pay
all expenses related to the registration of the Shares. See "Plan of
Distribution."
SELLING STOCKHOLDERS
This Prospectus relates to an aggregate of 2,500,000 shares of Common Stock
which may be offered for sale by the Company from time to time to acquire one or
more businesses in negotiated transactions not involving any public offering.
This Prospectus will be supplemented to furnish the information necessary for a
particular negotiated transaction and the Registration Statement of which this
Prospectus is a part will be amended, where appropriate, to supply information
concerning an acquisition. This Prospectus also relates to the offer for sale or
other distribution of Shares by persons who will acquire such shares in
connection with the acquisitions of businesses. Such Selling Stockholders will
be identified from time to time by filing supplements to this Prospectus.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell or distribute some or all of the Shares
from time to time through underwriters or dealers or brokers or other agents or
directly to one or more purchasers in transactions on the NASDAQ, in privately
negotiated transactions, or in the over-the-counter market, or in brokerage
transactions, or in a combination of such transactions. Such transactions may
be effected by the Selling Stockholders at market prices prevailing at the time
of sale, at prices related to such prevailing market prices, at negotiated
prices, or at fixed prices, which may be changed. Brokers, dealers, agents or
underwriters participating in such transactions as agent may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders (and, if they act as agent for the purchaser of such
shares, from such purchaser). Such discounts, concessions or commissions as to
a particular broker, dealer, agent or underwriter might be in excess of those
customary in the type of transaction involved. This Prospectus also may be
used, with the Company's consent, by donees of the Selling Stockholders, or by
other persons acquiring Shares and who wish to offer and sell such Shares under
circumstances requiring or making desirable its use. To the extent required,
the Company will file, during any period in which offers or sales are being
made, one or more supplements to this Prospectus to set forth the names of
Selling Stockholders and any other material information with respect to the plan
of distribution not previously disclosed.
The Selling Stockholders and any such underwriters, brokers, dealers or
agents that participate in such distribution may be deemed to be "underwriters"
within the meaning of the Securities Act, and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents might
be deemed to be underwriting discounts and commissions under the Securities Act.
The Company cannot presently estimate the amount of such compensation.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of any of the Shares may not simultaneously engage in
market activities with respect to the Common Stock for the applicable period
under Rule 10b-6 prior to the commencement of such distribution. In addition
and without limiting the foregoing, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including without limitation Rules 10b-5, 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 Common Stock.
The Company will pay substantially all of the expenses incident to this
Offering of the Shares by the Selling Stockholders to the public other than
commissions and discounts of underwriters, brokers, dealers or agents. Each
Selling Stockholder may indemnify any broker, dealer, agent or underwriter that
participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act. The
Company has agreed to indemnify the Selling Stockholders and any such
underwriters and controlling persons of such underwriters against certain
liabilities, including certain liabilities under the Securities Act.
If Shares are sold in an underwritten offering, the Shares may be acquired
by the underwriters for their own account and may be further resold from time to
time in one or more transactions, including negotiated transactions, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at negotiated prices, or at fixed prices. The names of the
underwriters with respect to any such offering and the terms of the
transactions, including any underwriting discounts, concessions or commissions
and other items constituting compensation of the underwriters and
broker-dealers, if any, will be set forth in a supplement to this Prospectus
relating to such offering. Any public offering price and any discounts,
concessions or commissions allowed or reallowed or paid to broker-dealers may be
changed from time to time. Unless otherwise set forth in a supplement to this
Prospectus, the obligations of the underwriters to
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purchase the Shares will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all of the shares specified in such
supplement if any such Shares are purchased.
If the Shares are sold in an underwritten offering, the underwriters and
selling group members (if any) may engage in passive market making transactions
in the Common Stock on Nasdaq immediately prior to the commencement of the sale
of shares in such offering, in accordance with Rule 10b-6A under the Exchange
Act. Passive market making presently consists of displaying bids on Nasdaq
limited by the bid prices of market makers not connected with such offering and
purchases by a passive market maker on each day are limited in amount to 30% of
the passive market maker's average daily trading volume in the Common Stock
during the period of the two full consecutive calendar months prior to the
filing with the Commission of the Registration Statement of which this
Prospectus is a part and must be discontinued when such limit is reached.
Passive market making may stabilize the market price of the Common Stock at a
level above that which might otherwise prevail and, if commenced, may be
discontinued at any time.
In order to comply with certain states' securities laws, if applicable, the
Shares will be sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, in certain states the Common Stock may not be
sold unless the Common Stock has been registered or qualified for sale in such
state or an exemption from registration or qualification is available and is
complied with.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital stock consists of 20,000,000 shares of
Common Stock, par value $.01 per share, and 5,000,000 shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock"). The discussions of the Common
Stock and Preferred Stock here and elsewhere in this Prospectus are qualified in
their entirety by reference to: (i) the Certificate of Incorporation of the
Company, as amended, a copy of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part; and (ii) the
applicable Delaware law.
Common Stock
Holders of Common Stock are entitled to one vote for each share held on all
matters submitted to a vote of stockholders and do not have cumulative voting
rights. Stockholders casting a plurality of votes of the stockholders entitled
to vote in an election of directors may elect all of the directors standing for
election. Holders of Common Stock are entitled to receive ratably such
dividends, if any, as may be declared by the Board of Directors out of funds
legally available therefor, subject to any preferential dividend rights of
Preferred Stock that may be issued at such future time or times. Upon the
liquidation, dissolution or winding up of the Company, the holders of Common
Stock are entitled to receive ratably the net assets of the Company after the
payment of all debts and other liabilities and subject to the prior rights of
Preferred Stock that may be outstanding at such time. Holders of Common Stock
have no preemptive, subscription, redemption or conversion rights. The
outstanding shares of Common Stock are, and the shares of Common Stock offered
by the Company in the Offering will be, when issued and paid for, fully paid and
nonassessable. The rights, preferences and privileges of holders of Common Stock
are subject to the rights of the holders of shares of any series of Preferred
Stock which the Company may designate and issue in the future.
As of July 31, 1997, there were 13,560,389 shares of Common Stock
outstanding.
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Undesignated Preferred Stock
The Company's Certificate of Incorporation authorizes 5,000,000 shares of
Preferred Stock. The Board of Directors has the authority to issue the Preferred
Stock in one or more series and to fix the rights, preferences, privileges and
restrictions thereof, including dividend rights, conversion rights, voting
rights, terms of redemption, redemption prices, liquidation preferences and the
number of shares constituting any series or the designation of such series,
without further vote or action by the stockholders. The issuance of Preferred
Stock may have the effect of delaying, deferring or preventing a change in
control of the Company without further action by the stockholders and may
adversely affect the voting and other rights of the holders of Common Stock. The
issuance of Preferred Stock with voting and conversion rights may adversely
affect the voting power of the holders of Common Stock, including the loss of
voting control of others. At present, the Company has no plans to issue any of
the Preferred Stock.
Delaware Anti-Takeover Law and Certain Charter Provisions
The Company is subject to Section 203 of the Delaware General Corporation
Law ("Section 203") which, subject to certain exceptions, prohibits a Delaware
corporation from engaging in any business combination with any interested
stockholder for a period of three years following the date that such stockholder
became an interested stockholder, unless: (i) prior to such date, the board of
directors of the corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an interested
stockholder; (ii) 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 time the
transaction commenced (for the purposes of determining the number of shares
outstanding, under Delaware law, those shares owned (x) by persons who are
directors and also officers and (y) by employee stock plans in which employee
participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer are
excluded from the calculation); or (iii) on or subsequent to such date, the
business combination is approved by the board of directors and authorized at an
annual or special meeting of stockholders, and not by written consent, by the
affirmative vote of at least 66 2/3% of the outstanding voting stock which is
not owned by the interested stockholder.
Section 203 defines a business combination to include: (i) any merger or
consolidation involving the corporation and the interested stockholder; (ii) any
sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving the interested stockholder; (iii) subject to certain
exceptions, any transaction which results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder;
(iv) any transaction involving the corporation which has the effect of
increasing the proportionate share of the stock of any class or series of the
corporation beneficially owned by the interested stockholder; or (v) the receipt
by the interested stockholder of the benefit of any loans, advances, guarantees,
pledges or other financial benefits provided by or through the corporation. In
general, Section 203 defines an interested stockholder as any entity or person
beneficially owning 15% or more of the outstanding voting stock of the
corporation and any entity or person affiliated with or controlling or
controlled by such entity or person.
Certain provisions of the Company's Certificate of Incorporation and
Delaware law may have a significant effect in delaying, deferring or preventing
a change in control of the Company and may adversely affect the voting and other
rights of other holders of Common Stock. In particular, the ability of the Board
of Directors to issue Preferred Stock without further stockholder approval may
have the effect of delaying, deferring or preventing a change in control of the
Company and may adversely affect the voting and other rights of other holders of
Common Stock.
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Registration Rights
The holders of 5,023,371 shares of Common Stock and warrants to purchase
168,905 shares of Common Stock are entitled to certain rights with respect to
the registration of such shares under the Securities Act. Under the terms of the
agreements between the Company and the holders of such registrable securities,
if the Company proposes to register any of its securities under the Securities
Act, either for its own account or for the account of other security holders
exercising registration rights, such holders are entitled to notice of such
registration and are entitled to include shares of such Common Stock therein.
The holders of such registrable securities may also require the Company on two
separate occasions to file a registration statement under the Securities Act at
the Company's expense with respect to their shares of Common Stock, and the
Company is required to use its diligent reasonable efforts to effect such
registration. These rights are subject to certain conditions and limitations,
among them the right of the underwriters of an offering to limit the number of
shares included in such registration.
Transfer Agent
The Transfer Agent for the Common Stock is the Continental Stock Transfer &
Trust Company, 2 Broadway, New York, New York 10004. Its telephone number is
(212) 509-4000.
LEGAL MATTERS
The legality of the Common Stock offered hereby will be passed upon for the
Company by Proskauer Rose LLP, 1585 Broadway, New York, New York 10036.
EXPERTS
The Consolidated Financial Statements of the Company at December 31, 1995
and 1996 and for each of the three years in the period ended December 31, 1996,
appearing in this Prospectus and the Registration Statement of which this
Prospectus forms a part have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon appearing elsewhere herein and in
the Registration Statement, and are included in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
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PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table shows the expenses, other than underwriting discounts,
which the Company expects to incur in connection with the issuance and
distribution of the securities being registered under this registration
statement. All expenses are estimated except for the Securities and Exchange
Commission registration fee and the NASD filing fee.
Securities and Exchange Commission registration fee.................. $14,773
NASD filing fee...................................................... 5,375
Blue Sky fees and expenses........................................... 5,000
Legal fees and expenses.............................................. 70,000
Accounting fees and expenses......................................... 25,000
Miscellaneous........................................................ 4,852
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Total........................................................... $125,000
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Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") permits a Delaware corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit, or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
In the case of an action by or in the right of the corporation, Section 145
permits the corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee, or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation. No indemnification may be made in respect of any claim, issue, or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
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To the extent that a director, officer, employee, or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in the preceding two paragraphs, Section 145 requires
that he be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 145 provides that expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal, administrative, or
investigative action, suit, or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit, or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in Section 145.
Article Fifth of the Company's Certificate of Incorporation eliminates the
personal liability of the directors of the Company to the Company or its
stockholders for monetary damages for breach of fiduciary duty as directors,
with certain exceptions, and Article Sixth requires indemnification of directors
and officers of the Company, and for advancement of litigation expenses to the
fullest extent permitted by Section 145. Article Sixth of the Company's By-laws
provides for indemnification of the Company's officers and directors to the
fullest extent permitted by Section 145 and other applicable laws as currently
in effect and as they may be amended in the future.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit No. Description of Exhibits
3.1 Restated Certificate of Incorporation of the Company (1)
3.2 Amendment to Restated Certificate of Incorporation (1)
3.3 By-laws of the Company (1)
4.1 Specimen Common Stock Certificate (1)
5.1 Opinion of Proskauer Rose LLP*
10.1 Credit Agreement dated as of May 22, 1997 among the Company,
Internationale Nederlanden (U.S.) Capital Corporation, as
administrative agent, Morgan Guaranty Trust Company of New York,
as syndication agent, Union Bank of California, N.A., as
documentation agent, BHF-Bank Aktiengasellschaft, as co-agent,
and Bank of America Illinois, as co-agent, and the other
financial institutions party thereto (2)
10.2 Registration Rights Agreement dated as of January 1, 1997 among
the Company and certain of its stockholders (1)
10.3 Employment Agreement dated as of May 31, 1996 between the Company
and Richard De Young(1)
10.4 Employment Agreement dated January 26, 1993 between the Company
and John J. McDonnell, as amended (1)
10.5 Employment Agreement dated May 16, 1995 between the Company and
Richard T. Kogler (1)
10.6 Employment Agreement dated June 2, 1995 between the Company and
Ann L. Straw (1)
10.7 Employment Agreement dated May 3, 1994 between the Company and
Lawrence R. Conrath, Sr.(1)
10.8 Employment Agreement dated as of May 31, 1996 between the Company
and David C. Stoller(1)
10.9 Employment Agreement dated as of February 21, 1997 between the
Company and Stephen P. Lavey (3)
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Exhibit No. Description of Exhibits
10.10 American Disposal Services, Inc. 1996 Stock Option Plan (1)
10.11 Form of Indemnification Agreement between the Company and its
directors (1)
10.12 Form of Indemnification Agreement between the Company and its
executive officers (1)
10.13 Form of Indemnification Agreement between the Company and its
directors and executive officers (1)
10.14 Form of Tax-Sharing Agreement between the Company and certain of
its executive officers (1)
21.1 Subsidiaries of the Company (4)
23.1 Consent of Ernst & Young LLP
23.2 Consent of Proskauer Rose LLP (included in exhibit 5.1)
24.1 Powers of Attorney are set forth on the signature pages hereof
- ---------------------
* Previously filed.
(1) Previously filed as an exhibit to the Company's Registration Statement on
Form S-1 (333-4889).
(2) Previously filed as an exhibit to the Company's Current Report on Form 8-K,
dated May 15, 1997.
(3) Filed as an exhibit to the Company's Registration Statement on Form 10-K/A
for the year ended December 31, 1996.
(4) Filed as an exhibit to the Company's Registration Statement on Form S-1
(333-24103).
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(b) Financial Statement Schedules
None
Item 17. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement of any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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 Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d)of the Securities
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<PAGE>
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) 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 provisions described above in Item 15
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 Securities Act of 1933 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 against the Registrant 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 Burr Ridge, State of Illinois, on August __,
1997.
American Disposal Services, Inc.
By: /s/ Richard De Young
---------------------------
Richard De Young
President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the Registrant's registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
* Chairman and Director (principal August __, 1997
- ---------------------
David C. Stoller executive officer)
/s/ Richard De Young President and Director August __, 1997
- ---------------------
Richard De Young
* Chief Financial Officer (principal August __, 1997
- ---------------------
Stephen P. Lavey financial officer)
* Vice President and Controller August __, 1997
- ------------------------
Lawrence R. Conrath, Sr. (principal accounting officer)
* Director August __, 1997
- ------------------------
Merril M. Halpern
* Director August __, 1997
- -----------------------
A. Lawrence Fagan
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<PAGE>
Signature Title Date
* Director August __, 1997
- -----------------------
Richard T. Henshaw, III
* Director August __, 1997
- -----------------------
G. T. Blankenship
* Director August __, 1997
- -----------------------
Norman Steisel
* /s/ RICHARD DE YOUNG
- ------------------------
Richard De Young
Attorney-in-Fact
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<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3 No. 333-28491) and related Prospectus
of American Disposal Services, Inc. for the registration of 2,500,000
shares of its common stock and to the incorporation by reference therein
of our report dated February 26, 1997, except as to Note 5 for which
the date is March 21, 1997 and as to Note 10 for which the date is
March 25, 1997 with respect to the consolidated financial statements
of American Disposal Services, Inc. included in its Annual Report
(Form 10K/A) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
August 8, 1997
