As filed with the Securities and Exchange Commission on May
29, 1998
Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
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 (I.R.S. Employer
jurisdiction of Industrial Identification No.)
incorporation or Classification
organization) Code Number)
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)
With 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 securities being registered on this form are being
offered in connection with the formation of a holding company and
there is compliance with General Instruction G, check the
following box. |_|
If this form is filed to register additional securities for
an offering pursuant to Rule 462(b) 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 this form is a post-effective amendment filed pursuant to
Rule 462(d) 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.
|_|
CALCULATION OF REGISTRATION FEE
Title Amount Proposed Proposed Amount of
of to be Maximum Maximum Registration
Each Registered Offering Aggregate Fee (1) (2)
Class Price Offering
of Per Price(1)
Securities Share(1)
to be
Registered
Common Stock 4,000,000 37.875 151,500,000 35,947.87
par value
$.01 per share
4,000,000
(1) The price stated is estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933 based on the average of the
high and low prices reported for the Common Stock on the
Nasdaq National Market on May 26, 1998.
(2) Pursuant to Rule 429(b) under the Securities Act of 1933,
the amount of the registration fee does not include 8,744.63
which was previously paid to the Commission for
registration fees relating to 1,233,793 shares of Common
Stock registered pursuant to Registration Statement No.
333-40529 and unissued as of the date hereof.
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.
AMERICAN DISPOSAL SERVICES, INC.
Cross Reference Sheet Showing Location
in Prospectus of Information Required by Items of Form S-4
ITEM
NUMBER FORM S-4 CAPTION LOCATION IN PROSPECTUS
A. - Information about the Transaction
1. Forepart of Registration Statement Facing Page; Outside
and Outside Front Cover Page of Front Cover Page of
Prospectus . . . . . . . . . . . . Prospectus; Available
Information
2. Inside Front and Outside Back Cover Inside Front of
Pages of Prospectus . . . . . . . . Prospectus; Outside
Back Cover Page of
Prospectus
3. Risk Factors; Ratio of Earnings to Outside Front Cover
Fixed Charges and Other Page of Prospectus;
Information. . . . . . . . . . . . The Company; Risk
Factors
4. Terms of the Transaction . . . . . Not Applicable
5. Pro Forma Financial Information. . Not Applicable
6. Material Contacts with the Company
Being Acquired. . . . . . . . . . Not Applicable
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters. . . . . Not Applicable
8. Interests of Named Experts and
Counsel . . . . . . . . . . . . . Not Applicable
9. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities . . . . . . . . . Not Applicable
B - Information about the Registrant
10. Information with Respect to S-3 Outside Front Cover of
Registrants. . . . . . . . . . . Prospectus; The
Company; Risk Factors;
Incorporation of
Certain Documents by
Reference
11. Incorporation of Certain Incorporation of
Information by Reference. . . . . Certain Documents by
Reference
12. Information with Respect to S-2 or
S-3 Registrants . . . . . . . . . Not Applicable
13. Incorporation of Certain
Information by Reference. . . . . Not Applicable
14. Information with Respect to
Registrants Other than S-3 or S-2
Registrants . . . . . . . . . . . Not Applicable
C - Information about the Company Being
Acquired . . . . . . . . . . . . . Not Applicable
D - Voting and Management Information Not Applicable
PROSPECTUS
SUBJECT TO COMPLETION, DATED MAY 29, 1998
4,000,000 SHARES
AMERICAN DISPOSAL SERVICES, INC.
COMMON STOCK
_____________________
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.
This Prospectus relates to an aggregate of 4,000,000 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 and issued by
the Company from time to time in connection with future direct or
indirect acquisitions of other businesses, properties or
securities in business combination transactions in accordance
with Rule 415(a)(1)(viii) of Regulation C under the Securities
Act of 1933, as amended (the "Securities Act"), or otherwise
permitted under the Securities Act.
The Company expects that the terms upon which it may issue
the Shares in business combination transactions will be
determined through negotiations with the securityholders or
principal owners of the businesses whose securities or assets are
to be acquired. It is expected that the Shares that are issued
will be valued at prices reasonably related to market prices for
the Common Stock prevailing either at the time an acquisition
agreement is executed or at the time an acquisition is
consummated.
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 Shares
by the Selling Stockholders but will bear all expenses incident
to the registration of the Shares. See "Selling Stockholders"
and "Plan of Distribution."
The Common Stock is quoted on the Nasdaq National Market
under the symbol "ADSI." On May 28, 1998, the last reported
sales price for the Common Stock as reported by NASDAQ was $38.06
per share.
_____________________
SEE "RISK FACTORS" ON PAGE 5 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 May , 1998.
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 on Form S-4 (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, 1997; (ii) the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998; (iii)
the Company's Proxy Statement relating to the 1998 Annual Meeting
of Stockholders; and (iv) all other reports filed pursuant to
Section 13(a) or 15(d) or the Exchange Act since December 31,
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
or 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. (the "Company") 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 began its operations in the Midwest and currently has
operations in the following 12 states: Arkansas, Connecticut,
Illinois, Indiana, Kansas, Kentucky, Massachusetts, Missouri,
Ohio, Oklahoma, Pennsylvania and Rhode Island. The Company owns
nine solid waste landfills and owns, operates or has exclusive
contracts to receive waste from 20 transfer stations. The
Company's operations cover six primary operating regions and its
landfills and transfer stations are supported by 17 collection
divisions, which currently serve over 400,000 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.
Since January 1993, the Company has acquired 70 solid waste
businesses, including eight solid waste landfills and 66 solid
waste collection companies.
The Company's operating program generally involves a
four-step process: (i) acquiring solid waste landfills in
markets that are within approximately 125 miles of significant
metropolitan centers; (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 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 to maximize the captive waste streams (which includes waste
from the Company's collection operations and third-party haulers
operating under long-term collection contracts) disposed of at
each of its landfills. During the year ended December 31, 1997,
the Company's captive waste constituted an average of
approximately 73% of the solid waste disposed of at Company-owned
landfills. In addition, approximately 81% of the total tonnage
collected by the Company during such period was disposed of at
Company-owned landfills. The Company plans to continue to pursue
its acquisition-based growth strategy to maximize 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.
Availability of Additional Acquisition Targets
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.
Integration of Acquisitions
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 to date, and expects to acquire in the future, 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 successfully consolidate 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.
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 could
have a material adverse effect on the Company's business,
financial condition and results of operations.
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; Prior Losses and Working
Capital Deficits
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 recorded net losses to common stockholders
of approximately $3.7 million and $370,000 during the fiscal
years ended December 31, 1995 and 1996, respectively. In
addition, 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. Furthermore, in connection with a completed
acquisition, the Company may be obligated to make contingent cash
payments of up to approximately $37.5 million over the next nine
years if certain business development projects are achieved as a
result of that acquisition. To the extent that internally
generated cash and cash available under the Company's $140
million revolving credit facility (the "Credit Facility") are not
sufficient to provide the cash required for future operations,
capital expenditures, acquisitions, earn-out and contingent
payments, 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.
Use of Leverage
Historically, the Company has incurred significant debt
obligations in connection with financing its acquisitions and
business growth. The Company has a $140 million Credit Facility
with a bank group led by 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. As of December 31,
1997, the Company's consolidated indebtedness was $23.1 million,
it consolidated total assets were $373.0 million and its
stockholders' equity was $297.4 million. At May 1, 1998, the
Company's consolidated indebtedness was approximately $5.1
million. The Company anticipates incurring significant
indebtedness in the future in order to fund all or a portion of
the purchase price of future acquisitions. 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.
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 and Chief Executive
Officer.
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.
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.
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 is 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 more stringent 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
flow control requirements, 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.
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.
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. 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."
PRICE RANGE OF COMMON STOCK
The Common Stock of the Company has been quoted on the
Nasdaq National Market under the symbol ("ADSI") since July 26,
1996, the date of the commencement of the Company's initial
public offering. The following table sets forth, for the periods
indicated, the high and low closing prices of the Common Stock as
reported on the Nasdaq National Market:
High Low
1996
3rd Quarter. . . . . . . . . . $18.25 $ 9.00
4th Quarter. . . . . . . . . . $18.50 $15.50
1997
1st Quarter. . . . . . . . . . $18.00 $16.50
2nd Quarter. . . . . . . . . . $25.06 $16.38
3rd Quarter. . . . . . . . . . $33.75 $21.00
4th Quarter. . . . . . . . . . $37.50 $29.00
1998
1st Quarter. . . . . . . . . . $38.25 $32.25
2nd Quarter (through May 28, 1998). $40.88 $37.31
On May 28, 1998, the last reported sales price of the Common
Stock was $38.06 per share.
DIVIDEND POLICY
The Company has never declared or paid any dividends on its
Common Stock. The Company and its Board of Directors currently
intend to retain any earnings for use in the operation and
expansion of the Company's business and do not anticipate paying
any dividends on the Common Stock for the foreseeable future. The
Company's Credit Facility prohibits the payment of cash dividends
without prior bank approval.
SELLING STOCKHOLDERS
This Prospectus relates to an aggregate of 4,000,000 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
This Prospectus relates to 4,000,000 shares of Common Stock
that may be offered and issued by the Company from time to time
in connection with future acquisitions of other businesses or
properties, or securities of other businesses. The shares
covered by this Prospectus may be issued in exchange for shares
of capital stock or other assets representing an interest, direct
or indirect, in other companies or other entities, in exchange
for assets used in or related to the business of such entities or
otherwise pursuant to the agreements providing for such
acquisitions. The terms of such acquisitions and of the issuance
of shares of Common Stock under acquisition agreements will
generally be determined by direct negotiations with the owners or
controlling persons of the business or properties to be acquired
or, in the case of entities that are more widely held, through
exchange offers to stockholders or documents soliciting the
approval of statutory mergers, consolidations or sales of assets.
It is anticipated that the shares of Common Stock issued in any
such acquisition will be valued at a price reasonably related to
the market value of the Common Stock either at the time of
agreement on the terms of an acquisition or at or about the time
of delivery of the shares.
All expenses of this registration will be paid by the
Company. It is not expected that underwriting discounts or
commissions will be paid by the Company in connection with
issuances of shares of Common Stock under this Prospectus.
However, finders' fees or brokers' commissions may be paid from
time to time in connection with specific acquisitions, and such
fees may be paid through the issuance of shares of Common Stock
covered by this Prospectus. Any person receiving such a fee may
be deemed to be an underwriter within the meaning of the
Securities Act.
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 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 registration of the Shares. 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.
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
60,000,000 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 May 26, 1998, there were 22,858,403 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 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.
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 31, 1997, have been audited
by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by
reference. Such Consolidated Financial Statements are
incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting
and auditing.
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. . . . . 2
The Company. . . . . . . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . 5
Use of Proceeds. . . . . . . . . . . . . . . . . . . . .12
Price Range of Common Stock. . . . . . . . . . . . . . .12
Dividend Policy. . . . . . . . . . . . . . . . . . . . .12
Selling Stockholders . . . . . . . . . . . . . . . . . .13
Plan of Distribution . . . . . . . . . . . . . . . . . .13
Description of Capital Stock . . . . . . . . . . . . . .15
Legal Matters. . . . . . . . . . . . . . . . . . . . . .17
Experts. . . . . . . . . . . . . . . . . . . . . . . . .17
PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. 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 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
Exhibit No. Description of Exhibits
3.3 Amendment to Restated Certificate of Incorporation
of the Company (1)
3.4 Bylaws of the Company (2)
4.1 Specimen Common Stock Certificate (2)
5.1 Opinion of Proskauer Rose LLP
21.1 Subsidiaries of the Company (1)
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
_____________________
(1) Previously filed as an exhibit to the Company's Annual
Report of Form 10-K/A for the fiscal year ended December 31,
1997.
(2) Previously filed as an exhibit to the Company's Registration
Statement on Form S-1 (333-4889).
Item 22. 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
end 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 or 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the registrant, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes to respond
to requests for information that is incorporated by reference
into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this
Form, within one business day of receipt of such request, and to
send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request.
(e) The undersigned registrant hereby undertakes to supply
by means of a post-effective amendment all information concerning
a transaction, and the Company being acquired involved therein,
that was not the subject of and included in the registration
statement when it became effective.
(f) The undersigned registrant hereby undertakes as
follows: that prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part
of this registration statement, by any person or party who is
deemed to be an underwriter within the meaning of Rule 145(c),
the issuer undertakes that such reoffering prospectus will
contain the information called for by the applicable registration
form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the
other items of the applicable form.
(g) The registrant undertakes that every prospectus: (i)
that is filed pursuant to paragraph (f) immediately preceding, or
(ii) that purports to meet the requirements of Section 10(a)(3)
of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Burr Ridge, State of
Illinois, on May 29, 1998.
American Disposal Services, Inc.
By: /s/ Richard De Young
Richard De Young
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below each severally constitutes and appoints
Richard De Young, Stephen P. Lavey and Ann L. Straw, and each of
them, as true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for them in their name,
place and stead, in any and all capacities, to sign any and all
amendments (including pre-effective and post-effective
amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they might or
could do in person, hereby ratifying and confirming all which
said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do, or cause to be done
by virtue hereof.
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
/s/ Richard De Young Chairman, May 29, 1998
Richard De Young President
Chief Executive
Officer and
Director
/s/ Stephen P. Lavey Chief Financial May 29, 1998
Stephen P. Lavey Officer principal
financial officer)
/s/ Lawrence R. Conrath, Sr. Vice President and May 29, 1998
Lawrence R. Conrath, Sr. Controller
(principal accounting officer)
/s/ David C. Stoller Director May 29, 1998
David C. Stoller
/s/ Merril M. Halpern Director May 29, 1998
Merril M. Halpern
/s/ A. Lawrence Fagan Director May 29, 1998
A. Lawrence Fagan
/s/ Richard T. Henshaw, III Director May 29, 1998
Richard T. Henshaw, III
/s/ G. T. Blankenship Director May 29, 1998
G. T. Blankenship
/s/ Norman Steisel Director May 29, 1998
Norman Steisel
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-4) and related
Prospectus of American Disposal Services, Inc. for the
registration of 4,000,000 shares of its common stock and to the
incorporation by reference therein to our report dated February
24, 1998, with respect to the consolidated financial statements
of American Disposal Services, Inc. included in its Annual Report
(Form 10-K/A) for the year ended December 31, 1997, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
May 26, 1998
Exhibit 5.1
PROSKAUER ROSE LLP
1585 BROADWAY
NEW YORK, NEW YORK 10036-8299
May 29, 1998
American Disposal Services, Inc.
745 McClintock Drive
Suite 230
Burr Ridge, IL 60521
Re: Registration Statement on Form S-4
File No. 333-
Gentlemen:
You have requested our opinion in connection with the
above-referenced registration statement (the "Registration
Statement") filed by American Disposal Services, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating
to 4,000,000 shares of the Company's Common Stock, par value $.01
per share (the "Shares").
As counsel to the Company, we have examined such corporate
records, other documents and questions of law as we have
considered necessary or appropriate for the purpose of this
opinion, including the Certificate of Incorporation, as amended,
and the By-laws of the Company, the Registration Statement, and
we have made such investigations of law as we have deemed
necessary in order to render the opinion hereinafter set forth.
In such examinations, we have assumed the genuineness of
signatures and the conformity to original documents of the
documents supplied to us as copies. As to relevant questions of
fact material to our opinion, we have relied upon statements and
certificates of officers and representatives of the Company.
In giving this opinion, we have assumed that the certificates for
the Shares, when issued, will have been duly executed on behalf
of the Company by the Company's transfer agent and registered by
the Company's registrar and will conform, except as to
denominations, to specimens we have examined.
Based upon and subject to the foregoing, we are of the opinion
that the Shares when issued, delivered and paid for will be
validly issued, fully paid and non-assessable.
We hereby consent to the references to our firm under the caption
"Legal Matters" in the Registration Statement and to the use of
this opinion as an exhibit to the Registration Statement. In
giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
PROSKAUER ROSE LLP
