As filed with the Securities and Exchange Commission
on September 2, 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 jurisdiction (Primary Standard (I.R.S.
of incorporation or Industrial Employer
organization) Classification Identification
Code Number) No.)
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.
PROSPECTUS
SUBJECT TO COMPLETION, DATED SEPTEMBER 2, 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 29, 1997, the last reported
sales price for the Common Stock as reported by NASDAQ was $27.50
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 September __, 1997.
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.
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 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 quarters ended March 31, 1997 and June 30,
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.
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
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.
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.
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.
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 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 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.
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.
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 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 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.
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 % 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.
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
incorporated by reference in the Company's Annual Report (Form
10-K/A) for the year ended December 1, 1996, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by
reference in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
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
Total $125,000
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.
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)
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).
(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 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.
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 September 2, 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
*
David C. Stoller Chairman and Director
(principal executive
officer) September 2, 1997
/s/ Richard De Young
Richard De Young President and Director September 2, 1997
*
Stephen P. Lavey Chief Financial Officer
(principal financial
officer) September 2, 1997
*
Lawrence R. Conrath, Sr. Vice President and September 2, 1997
Controller
(principal
accounting officer)
*
Merril M. Halpern Director September 2, 1997
*
A. Lawrence Fagan Director September 2, 1997
*
Richard T. Henshaw, III Director September 2, 1997
*
G. T. Blankenship Director September 2, 1997
*
Norman Steisel Director September 2, 1997
* /s/RICHARD DE YOUNG
Richard De Young
Attorney-in-Fact
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption
"Experts" in Post Effective Amendment No. 1 to the Registration
Statement (Substituting Form S-3 in lieu of Form S-1 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 to 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 29, 1997
