As filed with the Securities and Exchange Commission on November 18, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Casella Waste Systems, Inc.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 03-0338873
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
25 Greens Hill Lane, Rutland, Vermont 05701
-------------------------------------------
(Address of principal executive offices) (Zip Code)
Amended and Restated 1997 Stock Incentive Plan
----------------------------------------------
Non-Statutory Stock Options Pursuant to Written Option Agreements
-----------------------------------------------------------------
(Full title of the plan)
John W. Casella
President, Chief Executive Officer and Chairman
Casella Waste Systems, Inc.
25 Greens Hill Lane
Rutland, Vermont 05701
----------------------
(Name and address of agent for service)
(802) 775-0325
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
- ---------- ---------- --------- -------------- ------------
<S> <C> <C> <C> <C>
Class A
Common Stock, 1,311,000 $31.15 (1) $40,837,650 $11,352.86
$0.01 par value shares
- --------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based on the average of the high and low prices as reported by Nasdaq on
November __, 1998, in accordance with Securities Act Rule 457(c) and (h) of the
Securities Act of 1933, as amended (the "Securities Act").
(2) The number of shares being registered represents 1,000,000 shares of
Class A Common Stock authorized for issuance under the Registrant's Amended and
Restated 1997 Stock Incentive Plan and the aggregate number of shares of Class A
Common Stock underlying non-statutory options granted to the following:
Optionee Date of Grant Number of Shares
James Bohlig May 25, 1994 85,000
John W. Casella May 25, 1994 85,000
Douglas R. Casella May 25, 1994 85,000
Jerry S. Cifor May 25, 1994 56,000
-------
Total 311,000
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the Amended and Restated 1997 Stock Incentive Plan and to
certain holders of Non-Statutory Stock Options Pursuant to Written Option
Agreements of Casella Waste Systems, Inc., a Delaware corporation (the "Company"
or the "Registrant"), pursuant to Rule 428(b)(1) of the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act or either (1) the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed or (2) the Registrant's effective registration statement on Form
10 or 20-F filed under the Exchange Act containing audited financial statements
or the Registrant's latest fiscal year;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (1) above.
(3) The description of the Class A Common Stock, $0.01 par value per share
(the "Common Stock"), contained in the Company's Registration Statement on Form
8-A as filed with the Commission on October 15, 1997, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold, or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
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<PAGE>
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The Registrant's Second Amended and Restated Certificate of Incorporation
contains certain provisions permitted under the General Corporation Law of
Delaware relating to the liability of directors. These provisions eliminate a
director's personal liability for monetary damages for a breach of fiduciary
duty, except in certain circumstances involving wrongful acts, such as the
breach of a director's duty of loyalty or acts or omissions which involve
intentional misconduct or a knowing violation of the law. The Registrant's
Second Amended and Restated Certificate of Incorporation also contains
provisions obligating the Registrant to indemnify its directors and officers to
the fullest extent permitted by the General Corporation Law of Delaware.
The Registrant maintains insurance coverage insuring directors and officers
of the Registrant against certain liabilities which they may incur as directors
and officers of the Registrant, which may include coverage for liabilities
arising under the Securities Act.
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
-------------
1. The Registrant hereby undertakes:
(a) 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;
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<PAGE>
(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; and
(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 (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, executive officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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, executive officer or
controlling person of the Registrant in the successful
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<PAGE>
defense of any action, suit or proceeding) is asserted by such director,
executive 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 and will be governed by the final
adjudication of such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Rutland, Vermont, on this 18th day of November, 1998.
Casella Waste Systems, Inc.
By: /s/ John W. Casella
-------------------
John W. Casella
President, Chief Executive Officer,
Chairman of the Board of Directors
and Secretary
POWER OF ATTORNEY
We, the undersigned officers and directors of Casella Waste Systems, Inc.
hereby severally constitute and appoint John W. Casella, James W. Bohlig and
Jeffrey A. Stein, and each of them singly, our true and lawful attorneys-in-fact
with full power to them, and each of them singly, to sign for us and in our
names, in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all amendments to said Registration Statement and
generally to do all such things in our names and on our behalf in our capacities
as officers and directors to enable Casella Waste Systems, Inc. to comply with
the provisions of the Securities Act and all requirements of the Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys-in-fact, and each of them singly, to said Registration Statement and
any and all amendments thereto.
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<PAGE>
WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of November 18, 1998.
Signature Title
--------- -----
/s/ John W. Casella President, Chief Executive Officer,
- ------------------- Chairman of the Board of Directors
John W. Casella and Secretary (Principal Executive Officer)
/s/ Douglas R. Casella Vice Chairman of the Board of Directors
- ----------------------
Douglas R. Casella
/s/ James W. Bohlig Senior Vice President, Chief Operating
- ------------------- Officer and Director
James W. Bohlig
/s/ Jerry S. Cifor Vice President, Chief Financial Officer
- ------------------ and Treasurer (Principal Financial and
Jerry S. Cifor Accounting Officer)
/s/ John F. Chapple III Director
- -----------------------
John F. Chapple III
/s/ Michael F. Cronin Director
- ---------------------
Michael F. Cronin
Director
- -------------------
Kenneth H. Mead
/s/ Gregory B. Peters Director
- ---------------------
Gregory B. Peters
-7-
<PAGE>
Exhibit Index
-------------
Exhibit
Number
- ------
4.1 Second Amended and Restated Certificate of Incorporation of the
Registrant, as amended.
4.2(1) Second Amended and Restated By-laws of the Registrant
4.3(1) Specimen Certificate of Class A Common Stock of the Registrant
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, independent accountants
24.1 Power of Attorney (included in the signature pages of this
Registration Statement)
- -----------------------
(1) Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-1, as amended (File No. 333-33135),
and incorporated herein by reference.
CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CASELLA WASTE SYSTEMS, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------------------------
CASELLA WASTE SYSTEMS, INC. (hereinafter called the "Corporation"), a
corporation existing under and by virtue of the General Corporation Law of the
State of Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation, the Board of
Directors duly adopted resolutions pursuant to Section 242 of the General
Corporation Law of the State of Delaware setting forth an amendment to the
Second Amended and Restated Certificate of Incorporation of the Corporation and
declaring said amendment to be advisable. The stockholders of the Corporation
duly approved, pursuant to said Section 242, said proposed amendment at the
Annual Meeting of Stockholders held on October 14, 1998. The resolution setting
forth the amendment is as follows:
RESOLVED: That the first sentence of the first paragraph of Article FOURTH
of the Second Amended and Restated Certificate of Incorporation of the
Corporation be and hereby is deleted and the following sentence inserted in lieu
thereof:
"FOURTH: The total number of shares of all classes of stock which
the Corporation shall have authority to issue is (a) 100,000,000 shares of
Class A Common Stock, $0.01 par value per share ("Class A Common Stock"),
(b) 1,000,000 shares of Class B Common Stock, $0.01 par value per share
("Class B Common Stock", and collectively with the Class A Common Stock,
the "Common Stock"), and (c) 1,000,000 shares of Preferred Stock, $0.01
par value per share ("Preferred Stock"), issuable in one or more series as
provided herein."
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by John W. Casella, its President, this 27th day of
October, 1998
CASELLA WASTE SYSTEMS, INC.
By: /s/ John W. Casella
-------------------
John W. Casella
President
-2-
<PAGE>
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
of
CASELLA WASTE SYSTEMS, INC.
CASELLA WASTE SYSTEMS, INC., a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Corporation"), hereby
certifies pursuant to Sections 242 and 245 of the General Corporation Law of the
State of Delaware (the "General Corporation Law") that (i) the Corporation's
name is Casella Waste Systems, Inc. and it was originally incorporated under
such name; (ii) the Certificate of Incorporation of the Corporation was
originally filed with the Secretary of State of Delaware on March 1, 1993; and
(iii) this Amended and Restated Certificate of Incorporation amends and restates
the Certificate of Incorporation of the Corporation, as previously amended and
restated on December 26, 1995 and now in effect. This Amended and Restated
Certificate of Incorporation was adopted by the Board of Directors and
stockholders of the Corporation entitled to vote in respect thereof in the
manner and by the vote prescribed by Section 242 of the General Corporation Law
to read as follows:
FIRST: The name of the Corporation is Casella Waste Systems, Inc.
SECOND: The registered office of the Corporation in the State of Delaware
is located at 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act of
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is (a) 30,000,000 shares of Class A
Common Stock, $0.01 par value per share ("Class A Common Stock"), (b) 1,000,000
shares of Class B Common Stock, $0.01 par value per share ("Class B Common
Stock", and collectively with the Class A Common Stock, the "Common Stock"), and
(c) 1,000,000 shares of Preferred Stock, $0.01 par value per share ("Preferred
Stock"), issuable in one or more series as provided herein. The number of
authorized shares of any class or classes of capital stock of the Corporation
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority of the voting
power of the stock of the Corporation entitled to vote generally in the election
of directors irrespective of the provisions of
<PAGE>
Section 242(b)(2) of the General Corporation Law or any corresponding provision
hereinafter enacted.
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
4.1 COMMON STOCK.
All shares of Common Stock will be identical in all respects and will
entitle the holders thereof to the same rights and privileges, except as
otherwise provided herein.
(a) Voting Rights. The holders of shares of Common Stock shall have the
following voting rights:
(i) Each share of Class A Common Stock shall entitle the holder
thereof to one vote in person or by proxy on all matters submitted to a vote of
the stockholders of the Corporation.
(ii) Each share of Class B Common Stock shall entitle the holder
thereof to ten votes in person or by proxy on all matters submitted to a vote of
the stockholders of the Corporation.
(iii) Except for the election and the removal of the Class A Director
as described below in Article ELEVENTH, and as otherwise required by applicable
law, the holders of shares of Common Stock shall vote together as one class on
all matters submitted to a vote of stockholders of the Corporation.
(b) Dividends and Distributions. Subject to the preferences applicable to
Preferred Stock outstanding at any time, the holders of shares of Common Stock
shall be entitled to receive such dividends and other distributions in cash,
property or shares of stock of the Corporation as may be declared thereon by the
Board of Directors from time to time out of assets or funds of the Corporation
legally available therefor; provided, that, subject to the provisions of this
Section 4.1(b), the Corporation shall not pay dividends or make distributions to
any holders of any class of Common Stock unless simultaneously with such
dividend or distribution, as the case may be, the Company makes the same
dividend or distribution with respect to each outstanding share of Common Stock
regardless of class. In the case of dividends or other distributions payable in
Class A Common Stock or Class B Common Stock, including distributions pursuant
to stock splits or divisions of Class A Common Stock or Class B Common Stock,
only shares of Class A Common Stock shall be distributed with respect to Class A
Common Stock, and only shares of Class B Common Stock shall be distributed with
respect to Class B Common Stock. Whenever a dividend or
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<PAGE>
distribution, including distributions pursuant to stock splits or divisions of
the Common Stock, is payable in shares of Class A Common Stock or Class B Common
Stock, the number of shares of each class of Common Stock payable per share of
such class of Common Stock shall be equal in number. In the case of dividends or
other distributions consisting of other voting securities of the Corporation or
of voting securities of any corporation which is a wholly-owned subsidiary of
the Corporation, the Corporation shall declare and pay such dividends in two
separate classes of such voting securities, identical in all respects, except
that (i) the voting rights of each such security paid to the holders of Class A
Common Stock shall be one-tenth of the voting rights of each such security paid
to the holders of Class B Common Stock, (ii) such security paid to the holders
of Class B Common Stock shall convert into the security paid to the holders of
Class A Common Stock upon the same terms and conditions applicable to the
conversion of Class B Common Stock into Class A Common Stock and shall have the
same restrictions on transfer and ownership applicable to the transfer and
ownership of the Class B Common Stock, and (iii) with respect only to dividends
or other distributions of voting securities of any corporation which is a
wholly-owned subsidiary of the Company, the respective voting rights of each
such security paid to holders of Class A Common Stock and Class B Common Stock
with respect to the election of directors shall otherwise be as comparable as is
practicable to those of the Class A Common Stock and Class B Common Stock,
respectively. In the case of dividends or other distributions consisting of
securities convertible into, or exchangeable for, voting securities of the
Corporation or voting securities of another corporation which is a wholly-owned
subsidiary of the corporation, the Corporation shall provide that such
convertible or exchangeable securities and the underlying securities be
identical in all respects (including, without limitation, the conversion or
exchange rate), except that (i) the voting rights of each security underlying
the convertible or exchangeable security paid to the holders of Class A Common
Stock shall be one-tenth of the voting rights of each security underlying the
convertible or exchangeable security paid to the holders of the Class B Common
Stock, and (ii) such underlying securities paid to the holders of Class B Common
Stock shall convert into the underlying securities paid to the holders of Class
A Common Stock upon the same terms and conditions applicable to the conversion
of Class B Common Stock into Class A Common Stock and shall have the same
restrictions on transfer and ownership applicable to the transfer and ownership
of the Class B Common Stock.
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<PAGE>
(c) Conversion of Class B Common Stock.
(i) Each holder of Class B Common Stock shall be entitled to convert,
at any time and from time to time, any or all of the shares of such holder's
Class B Common Stock on a one-for-one basis, into the same number of fully paid
and non-assessable shares of Class A Common Stock. Such right shall be exercised
by the surrender of the certificate or certificates representing the shares of
Class B Common Stock to be converted to the Corporation at any time during
normal business hours at the principal executive offices of the Corporation or
at the office of the Transfer Agent, accompanied by a written notice of the
holder of such shares stating that such holder desires to convert such shares,
or a stated number of the shares represented by such certificate or
certificates, into an equal number of shares of the Class A Common Stock, and
(if so required by the Corporation or the Transfer Agent) by instruments of
transfer, in form satisfactory to the Corporation and to the Transfer Agent,
duly executed by such holder or such holder's duly authorized attorney, and
transfer tax stamps or funds therefor, if required pursuant to Section
4.1(c)(vi).
(ii) If, on the record date for any meeting of stockholders of the
Corporation, the number of shares of Common Stock (including Class A Common
Stock and Class B Common Stock) outstanding and held by all Class B Permitted
Holders (as defined in Section 4.1(i)) in the aggregate constitutes less than
10% of the aggregate number of shares of Common Stock outstanding immediately
upon the initial closing of the Company's initial public offering contemplated
by Registration Statement No. 333-33135 (adjusted for stock splits, stock
dividends, reclassifications, recapitalizations and reverse stock splits and
similar transactions), each share of Class B Common Stock then issued or
outstanding shall thereupon be converted automatically as of such date into one
(1) fully paid and non-assessable share of Class A Common Stock. Upon the making
of such determination, notice of such automatic conversion shall be given by the
Corporation by means of a press release and written notice to all holders of
Class B Common Stock, and shall be given as soon as practicable, and the
Secretary of the Corporation shall be instructed to, and shall promptly request
from each holder of Class B Common Stock that each such holder promptly deliver,
and each such holder shall promptly deliver, the certificate representing each
such share of Class B Common Stock to the Corporation for exchange hereunder,
together with instruments of transfer, in form satisfactory to the Corporation
and Transfer Agent, duly executed by such holder or such holder's duly
authorized attorney, and together with transfer tax stamps or funds therefor, if
required pursuant to Section 4.1(c)(vi).
(iii) As promptly as practicable following the surrender for
conversion of a certificate representing shares of Class B Common Stock in the
manner provided in Section 4.1(c)(i) or Section 4.1(c)(ii), as applicable, and
the payment in cash of any amount required by the provisions of Section
4.1(c)(vi), the Corporation will deliver
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<PAGE>
or cause to be delivered at the office of the Transfer Agent, a certificate or
certificates representing the number of full shares of Class A Common Stock
issuable upon such conversion, issued in such name or names as such holder may
direct. Such conversion shall be deemed to have been effected immediately prior
to the close of business on the date of the surrender of the certificate or
certificates representing shares of Class B Common Stock. Upon the date any such
conversion is made or effected, all rights of the holder of such shares as such
holder shall cease, and the person or persons in whose name or names the
certificates or certificates representing the shares of Class A Common Stock are
to be issued shall be treated for all purposes as having become the record
holder or holders of such shares of Class A Common Stock; provided, however,
that if any such surrender and payment occurs on any date when the stock
transfer books of the Corporation shall be closed, the person or persons in
whose name or names the certificate or certificates representing shares of Class
A Common Stock are to be issued shall be deemed the record holder or holders
thereof for all purposes immediately prior to the close of business on the next
succeeding day on which the stock transfer books are open.
(iv) In the event of a reclassification or other similar transaction
as a result of which the shares of Class A Common Stock are converted into
another security, then a holder of Class B Common Stock shall be entitled to
receive upon conversion the amount of such security that such holder would have
received if such conversion had occurred immediately prior to the record date of
such reclassification or other similar transaction. No adjustments in respect of
dividends shall be made upon the conversion of any share of Class B Common
Stock; provided, however, that if a share shall be converted subsequent to the
record date for the payment of a dividend or other distribution on shares of
Class B Common Stock but prior to such payment, then the registered holder of
such share at the close of business on such record date shall be entitled to
receive the dividend or other distribution payable on such share on such date
notwithstanding the conversion thereof or the Corporation's default in payment
of the dividend due on such date.
(v) The Corporation covenants that it will at all times reserve and
keep available out of its authorized but unissued shares of Class A Common
Stock, solely for the purpose of issuance upon conversion of the outstanding
shares of Class B Common Stock, such number of shares of Class A Common Stock
that shall be issuable upon the conversion of all such outstanding shares of
Class B Common Stock; provided that nothing contained herein shall be construed
to preclude the Corporation from satisfying its obligations in respect of the
conversion of the outstanding shares of Class B Common Stock by delivery of
purchased shares of Class A Common Stock which are held in the treasury of the
Corporation. The Corporation covenants that if any shares of Class A Common
Stock require registration with or approval of any governmental authority under
any federal or state law before such shares of Class A Common stock may be
issued upon conversion, the Corporation will cause such shares to be duly
registered or approved,
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<PAGE>
as the case may be. The Corporation will use its best efforts to list the shares
of Class A Common Stock required to be delivered upon conversion prior to such
delivery upon each national securities exchange upon which the outstanding Class
A Common Stock is listed at the time of such delivery. The Corporation covenants
that all shares of Class A Common Stock that shall be issued upon conversion of
the shares of Class B Common Stock will, upon issue, be validly issued, fully
paid and non-assessable.
(vi) The issuance of certificates for shares of Class A Common Stock
upon conversion of shares of Class B Common Stock shall be made without charge
to the holders of such shares for any stamp or other similar tax in respect of
such issuance; provided, however, that, if any such certificate is to be issued
in a name other than that of the holder of the share or shares of Class B Common
Stock converted, then the person or persons requesting the issuance thereof
shall pay to the Corporation the amount of any tax that may be payable in
respect of any transfer involved in such issuance or shall establish to the
satisfaction of the Corporation that such tax has been paid.
(vii) Shares of Class B Common Stock that are converted into shares of
Class A Common Stock as provided herein shall continue to be authorized shares
of Class B Common Stock and available for reissue by the Corporation; provided,
however, that no shares of Class B Common Stock shall be reissued except as
expressly permitted by Sections 4.1(b) and 4.1(d) of this Amended and Restated
Certificate of Incorporation.
(d) Stock Splits. The Corporation shall not in any manner subdivided (by
any stock split, stock dividend, reclassification, recapitalization or
otherwise) or combine (by reverse stock split, reclassification,
recapitalization or otherwise) the outstanding shares of one class of Common
Stock unless the outstanding shares of all classes of Common Stock shall be
proportionately subdivided or combined.
(e) Options, Rights or Warrants.
(i) The Corporation shall not make any offering of options, rights or
warrants to subscribe for shares of Class B Common Stock, except that if the
Corporation makes an offering of options, rights or warrants to subscribe for
shares of any other class or classes of capital stock (other than Class B Common
Stock) to all holders of a class of Common Stock then the Corporation shall
simultaneously make an identical offering to all holders of the other classes of
Common Stock other than to any class of Common Stock the holders of which,
voting as a separate class, determine that such offering need not be made to
such class. All such options, rights or warrants offerings shall offer the
respective holders of Class A Common Stock and Class B Common Stock the right to
subscribe at the same rate per share.
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<PAGE>
(ii) Subject to Section 4.1(c)(iv) and 4.1(e)(i), the Corporation
shall have the power to create and issue, whether or not in connection with the
issue and sale of any shares of stock or other securities of the Corporation,
rights or options entitling the holders thereof to purchase from the Corporation
any shares of its capital stock of any class or classes at the time authorized
(other than Class B Common Stock), such rights or options to have such terms and
conditions, and to be evidenced by or in such instrument or instruments, as all
be approved by the Board of Directors.
(f) Mergers, Consolidation, Etc. In the event that the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then, and in such event, the shares
of each class of Common Stock shall be exchanged for or changed into either (1)
the same amount of stock, securities, cash and/or any other property, as the
case may be, into which or for which each share of any other class of Common
Stock is exchanged or changed; provided, however, that if shares of Common Stock
are exchanged for or changed into shares of capital stock, such shares so
exchanged for or changed into may differ to the extent and only to the extent
that the Class A Common Stock and the Class B Common Stock differ as provided
herein or (2) if holders of each class of Common Stock are to receive different
distributions of stock, securities, cash and/or any other property, an amount of
stock, securities, cash and/or property per shares having a value, as determined
by an independent investment banking firm of national reputation selected by the
Board of Directors, equal to the value per share into which or for which each
share of any other class of Common Stock is exchanged or changed.
(g) Liquidation Rights. In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and other liabilities of the
Corporation and after making provision for the holders of each series of
Preferred Stock, if any, the remaining assets and funds of the Corporation, if
any, shall be divided among and paid ratably to the holders of the shares of the
Class A Common Stock and the Class B Common Stock treated as a single class.
(h) No Preemptive Rights. Except as provided in Section 4.1(e), the
holders of shares of Common Stock are not entitled to any preemptive right to
subscribe for, purchase or receive any part of any new or additional issue of
stock of any class, whether now or hereafter authorized, or of bonds, debentures
or other securities convertible into or exchangeable for stock.
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(i) Transfer of Class B Common Stock.
(i) No person may, directly or indirectly, sell (whether by
involuntary or judicial sale or otherwise), assign, transfer, grant a security
interest in, pledge, encumber, hypothecate, give (by bequest, gift or
appointment) or otherwise (voluntarily or by operation of law) dispose of
(collectively, "Transfer") any interest in his, her or its shares of Class B
Common Stock (or in any shares of Class B Common Stock held by such person for
the benefit of or on the behalf of another person) (including, without
limitation, the power to vote or provide a consent with respect to his, her or
its shares of Class B Common Stock by proxy or otherwise, except for proxies
given to any Class B Permitted Holder (as defined below) or to a person
designated by the Board of Directors of the Corporation who is soliciting
proxies on behalf of the Corporation), and the Corporation and the transfer
agent for the Class B Common Stock, if any (the "Class B Transfer Agent"), shall
not register the Transfer of such shares of Class B Common Stock, except to the
Corporation or a Class B Permitted Holder; provided, however, such restrictions
on transfer shall not apply to a merger, consolidation or business combination
of the Corporation with or into another corporation pursuant to which all of the
outstanding shares of each class of Common Stock and Preferred Stock of the
Company is being acquired. Any transfer of Class B Common Stock in violation of
this Section 4.1(i) shall be null and void ab initio, and the Corporation shall
not register such Transfer. For the purposes of this Article Four, a "Class B
Permitted Holder" shall include only the following persons: (i) John W. Casella,
Douglas R. Casella and their respective estates, guardians, conservators or
committees; (ii) the spouses of John W. Casella and Douglas R. Casella and their
respective estates, guardians, conservators or committees; (iii) each descendant
of John W. Casella or Douglas R. Casella (a "Casella Descendant") and their
respective estates, guardians, conservators or committees; (iv) each Family
Controlled Entity (as defined below); and (v) the trustees, in their respective
capacities as such, of each Casella Family Trust (as defined below). The term
"Family Controlled Entity" means (i) any not-for-profit corporation if at least
a majority of its board of directors is composed of John W. Casella, Douglas R.
Casella, the spouse of John W. Casella or Douglas R. Casella and/or Casella
Descendants; (ii) any other corporation if at least a majority of the value of
its outstanding equity is owned by Class B Permitted Holders; (iii) any
partnership if at least a majority of the economic interest of its partnership
interests is owned by Class B Permitted Holders; and (iv) any limited liability
or similar company it at least a majority of the economic interest of the
Company is owned by Class B Permitted Holders. The term "Casella Family Trust"
includes trusts the primary beneficiaries of which are one or more of John W.
Casella, Douglas R. Casella, the spouse of John W. Casella or Douglas R.
Casella, Casella Descendants, the siblings, spouses of Casella Descendants and
their respective estates, guardians, conservators or committees and/or
charitable organizations (collectively, "Casella Beneficiaries"), provided that
if the trust is a wholly charitable trust, at least a majority of the trustees
of such trust consist of John W. Casella, Douglas R. Casella, the spouse of
either John W. Casella or Douglas R. Casella
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and/or any Class B Permitted Holder. For purposes of this provision, the primary
beneficiaries of a trust will be deemed to be Casella Beneficiaries if, under
the maximum exercise of discretion by the trustee in favor of persons who are
not Casella Beneficiaries, the value of the interests of such persons in such
trust, computed actuarially, is 50% or less. The factors and methods prescribed
in section 7520 of the Internal Revenue Code of 1986, as amended, for use in
ascertaining the value of certain interests shall be used in determining a
beneficiary's actuarial interest in a trust for purposes of applying this
provision. For purposes of this provision, the actuarial value of the interest
in a trust of any person in whose favor a testamentary power of appointment may
be exercised shall be deemed to be zero. For purposes of this provision, in the
case of a trust created by a Casella Descendant, the actuarial value of the
interest in such trust of any person who may receive trust property only at the
termination of the trust and then only in the event that, at the termination of
the trust, there are no living issue of such Casella Descendant shall be deemed
to be zero.
(ii) Notwithstanding anything to the contrary set forth herein, any
Class B Permitted Holder may pledge his, her or its shares of Class B Common
Stock to a financial institution pursuant to a bona fide pledge of such shares
as collateral security for indebtedness due to the pledgee; provided, that such
shares shall remain subject to the provisions of this Section 4.1(i). In the
event of foreclosure or other similar action by the pledgee, such pledged shares
of Class B Common Stock may only be transferred to a Class B Permitted Holder or
converted into shares of Class A Common Stock, as the pledgee may elect.
(iii) For purposes of this Section 4.1(i):
(1) the relationship of any person that is derived by or
through legal adoption shall be considered a natural relationship;
(2) a minor who is a descendant of John W. Casella or Douglas
R. Casella and for whom shares of Class B Common Stock are held pursuant to a
Uniform Gifts to Minors Act or similar law shall be considered a Class B
Permitted Holder and the custodian who is the record holder of such shares shall
not be considered the Class B Permitted Holder of such shares;
(3) an incompetent stockholder who is a Class B Permitted
Holder but whose shares are owned or held by a guardian or conservator shall be
considered a Class B Permitted Holder of such shares and such guardian or
conservator who is the holder of such shares shall not be considered the Class B
Permitted Holder of such shares;
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(4) unless otherwise specified, the term "person" means and
includes natural persons, corporations, partnerships, unincorporated
associations, firms, joint ventures, trusts and all other entities; and
(5) except as provided in clauses (2) and (3) above, for
purposes of determining whether the holder of shares of Class B Common Stock is
a Class B Permitted Holder, the record holder of such share shall be considered
the holder; provided, however, that if such record holder is a nominee, the
holder for purposes of determining whether the holder of shares of Class B
Common Stock is a Class B Permitted Holder shall be the first person in the
chain of ownership of such share of Class B Common Stock who is not holding such
share solely as a nominee.
(iv) Each certificate representing shares of Class B Common Stock
shall be endorsed with a legend that states that shares of Class B Common Stock
are not transferable other than to certain transferees and are subject to
certain restrictions as set forth in this Amended and Restated Certificate of
Incorporation filed by the Corporation with the Secretary of State and the State
of Delaware.
(j) Certain Automatic Conversions of Class B Common Stock. Subject to
Section 4.1(i), at such time as a person ceases to be a Class B Permitted
Holder, any and all shares of Class B Common Stock held by such person at such
time shall automatically convert into shares of Class A Common Stock, provided
that no conversion shall occur upon the pledge of a Class B Permitted Holder's
shares of Class B Common Stock to a financial institution as contemplated by and
pursuant to Section 4.1(i)(ii).
(k) Restrictions on Issuance. The Corporation shall not issue or sell any
shares of Class B Common Stock or any securities (including, without limitation,
any rights, options, warrants or other securities) convertible, exchangeable or
exercisable into shares of Class B Common Stock to any person that is not a
Class B Permitted Holder. Any issuance or sale of shares of Class B Common Stock
(or securities convertible into, or exchangeable or exercisable for, shares of
Class B Common Stock) in violation of this Section 4.1(k) shall be null and void
ab initio.
4.2 PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated of expressed herein and in the
resolution or resolutions providing for the issue on such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
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Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issue of the shares thereof (and by filing a certificate pursuant to the
applicable law of the State of Delaware), to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, special voting rights, conversion rights,
redemption privileges and liquidation preferences, as shall be stated and
expressed in such resolutions, all to the full extent now or hereafter permitted
by the General Corporation Law of Delaware. Without limiting the generality of
the foregoing, the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be
junior to the Preferred Stock of any other series to the extent permitted by
law. Except as otherwise specifically provided in this Certificate of
Incorporation or otherwise by agreement, no vote of the holders of the Preferred
Stock or Common Stock shall be a prerequisite to the issuance of any shares of
any series of the Preferred Stock authorized by and complying with the
conditions of this Certificate of Incorporation, the right to have such vote
being expressly waived by all present and future holders of the capital stock of
the Corporation.
FIFTH. In furtherance of and not in limitation of powers
conferred by statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SIXTH. Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
SEVENTH. 7.1 Actions, Suits and Proceedings Other than by or in the Right
of the Corporation. The Corporation shall indemnify each 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, or has agreed to become, a director or
officer of the Corporation, or is
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or was serving, or has agreed to serve, at the request of the Corporation, as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (all such persons being referred to hereafter as an
"Indemnitee"), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect o any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding anything to the contrary in this Article, except
as set forth in Section 7.7 below, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by the Indemnitee unless the initiation thereof was approved
by the Board of Directors of the Corporation. Notwithstanding anything to the
contrary in this Article, the Corporation shall not indemnify an Indemnitee to
the extent such Indemnitee is reimbursed from the proceeds of insurance, and in
the event the Corporation makes any indemnification payments to an Indemnitee
and such Indemnitee is subsequently reimbursed from the proceeds of insurance,
such Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
7.2. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any Indemnitee 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, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, 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, except that no
indemnification shall 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
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of Chancery of Delaware shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) which the Court of Chancery of Delaware shall deem
proper.
7.3. Indemnification for Expenses of Successful Party. Notwithstanding the
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 7.1 and 7.2, or in defense of any claim,
issue or matter therein, or on appeal from any such action, suit or proceeding,
he shall be indemnified against all expenses (including attorneys' fees)
actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
7.4. Notification and Defense of Claim. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 7.4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation, except
as otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to
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assume the defense of any claim brought by or in the right of the Corporation or
as to which counsel for the Indemnitee shall have reasonably made the conclusion
provided for in clause (ii) above.
7.5. Advance of Expenses. Subject to the provisions of Section 7.6 below,
in the event that the Corporation does not assume the defense pursuant to
Section 7.4 of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter; provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking shall be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
7.6. Procedure for Indemnification. In order to obtain indemnification or
advancement of expenses pursuant to Section 7.1, 7.2, 7.3 or 7.5, the Indemnitee
shall submit to the Corporation a written request, including in such request
such documentation and information as is reasonably available to the Indemnitee
and is reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made promptly, and in any
event within 60 days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests under Section 7.1, 7.2 or 7.5
the Corporation determines within such 60-day period that the Indemnitee did not
meet the applicable standard of conduct set forth in Section 7.1 or 7.2, as the
case may be. Such determination shall be made in each instance by (a) a majority
vote of the directors of the Corporation consisting of persons who are not at
that time parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for directors,
voting as a single class, which quorum shall consist of stockholders who are not
at that time parties to the action, suit or proceeding in question, (c)
independent legal counsel (who may, to the extent permitted by law, be regular
legal counsel to the Corporation), or (d) a court of competent jurisdiction.
7.7. Remedies. The right to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 7.6. Unless otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the
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Corporation. Neither the failure of the Corporation to have made a determination
prior to the commencement of such action that indemnification is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct,
nor an actual determination by the Corporation pursuant to Section 7.6 that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses (including attorneys'
fees) incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
7.8. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
7.9. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreement with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time to
time by its Board of Directors, grant indemnification rights to other employees
or agents of the Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set forth in this
Article.
7.10. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
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7.11. Insurance. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the General
Corporation Law of Delaware.
7.12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
7.13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
7.14. Definitions. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
7.15. Subsequent Legislation. If the General Corporation Law of Delaware
is amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the Corporation shall indemnify such person to
the fullest extent permitted by the General Corporation Law of Delaware, as so
amended.
EIGHTH: Subject to the terms of any series of Preferred Stock or any other
securities of the Corporation with respect to the voting of shares of such
series or of such other securities, as the case may be, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by such stockholders. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting. Subject to
any such terms of any series of Preferred Stock or any such other securities of
the Corporation, special meetings of stockholders of the Corporation may be
called only as provided in the By-laws of the Corporation.
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NINTH: The books of the Corporation may (subject to any statutory
requirements) be kept outside the State of Delaware as may be designated by the
Board of Directors or in the Bylaws of the Corporation.
TENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by law and this Amended
and Restated Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ELEVENTH: This Article is inserted for the management of the business and
for the conduct of the affairs of the Corporation, and it is expressly provided
that it is intended to be in furtherance and not in limitation or exclusion of
the powers conferred by the statutes of the State of Delaware.
11.1. Number of Directors. The number of directors which shall constitute
the whole Board of Directors shall be determined by resolution of a majority of
the Board of Directors, but in no event shall be less than three. The number of
directors may be decreased at any time and from time to time by a majority of
the directors then in office, but only to eliminate vacancies existing by reason
of the death, resignation, removal or expiration of the term of one or more
directors. The directors shall be elected at the annual meeting of the
stockholders by such stockholders as have the right to vote on such election.
Directors need not be stockholders of the corporation.
11.2. Classes of Directors. The Board of Directors shall be and is divided
into three classes: Class I, Class I and Class III. No one class shall have more
than one director more than any other class. If a fraction is contained in the
quotient arrived at by dividing the authorized number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class I and, if such fraction is two-thirds, one of the extra directors shall be
a member of Class I and the other extra director shall be a member of Class II,
unless otherwise provided for from time to time by resolution adopted by a
majority of the Board of Directors. The Class A Director shall be in Class I.
11.3. Election of Directors. The holders of Class A Common Stock, voting
separately as a class, shall be entitled to elect one director (the "Class A
Director"). All other directors shall be elected by the holders of the Class A
Common Stock and Class B Common Stock, if any, voting together as a single
class.
11.4. Terms of Office. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
shall serve for a term ending on the date of the annual meeting next following
the end of the Corporation's
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fiscal year ending April 30, 1998; each initial director in Class II shall serve
for a term ending on the date of the annual meeting next following the end of
the Corporation's fiscal year ending April 30, 1999; and each initial director
in Class III shall serve for a term ending on the date of the annual meeting
next following the end of the Corporation's fiscal year ending April 30, 2000.
11.5. Allocation of Directors Among Classes in the Event of Increases or
Decreases in the Number of Directors. In the event of any increase or decrease
in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as director of the class of which he is a member
until the expiration of his current term or his prior death, retirement or
resignation and (ii) the newly created or eliminated directorships resulting
from such increase or decrease shall be apportioned by the Board of Directors
among the three classes of directors so as to ensure that no one class has more
than one director more than any other class. To the extent possible, consistent
with the foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of office are to expire at the earliest dates
following such allocation, unless otherwise provided for from time to time by
resolution adopted by a majority of the directors then in office, although less
than a quorum.
11.6. Tenure. Notwithstanding any provisions to the contrary contained
herein, each director shall hold office until his successor is elected and
qualified, or until his earlier death, resignation or removal.
11.7. Vacancies. Any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board, may be filled
only by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor in office, if
applicable, and a director chosen to fill a position resulting from an increase
in the number of directors shall hold office until the next election of the
class for which such director shall have been chosen and until his successor is
elected and qualified, or until his earlier death, resignation or removal.
11.8. Quorum. A majority of the total number of the whole Board of
Directors shall constitute a quorum at all meetings of the Board of Directors.
In the event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such director
so disqualified; provided, however, that in no case shall less than one-third
(1/3) of the number so fixed constitute a quorum. In the absence of a quorum at
any such meeting, a majority of the directors present may adjourn the meeting
from time to time without
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<PAGE>
further notice other than announcement at the meeting, until a quorum shall be
present.
11.9. Action at Meeting. At any meeting of the Board of Directors at which
a quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law or this
Certificate of Incorporation or the By-Laws of the Corporation.
11.10. Removal. Any one or more or all of the directors may be removed,
with or without cause, by the holders of shares representing at least
seventy-five percent (75%) of the votes which all the stockholders would be
entitled to cast at any election of directors or class of directors (other than
an election of the Class A Director); provided, however, that the Class A
Director may be removed only by the holders of at least seventy-five percent
(75%) of the outstanding shares of Class A Common Stock.
11.11. Stockholder Nominations and Introduction of Business, Etc. Advance
notice of stockholder nominations for election of directors and other business
to be brought by stockholders before a meeting of stockholders shall be given in
the manner provided in the By-Laws of the Corporation.
TWELFTH: In addition to any other considerations which the Board of
Directors may lawfully take into account in determining whether to take or to
refrain from taking corporate action on any matter, including proposing any
matter to the stockholders of the Corporation, the Board of Directors may take
into account the interests of creditors, customers, employees and other
constituencies of the Corporation and its subsidiaries and the effect thereof
upon communities in which the Corporation and its subsidiaries do business.
THIRTEENTH: In furtherance and not in limitation of the powers conferred
by law or in this Certificate of Incorporation, the Board of Directors (and any
committee of the Board of Directors) is expressly authorized to take such action
or actions as the Board or such committee may determine to be reasonably
necessary or desirable to (a) encourage any person to enter into negotiations
with the Board of Directors and management of the Corporation with respect to
any transaction which may result in a change in control of the Corporation which
is proposed or initiated by such person, or (b) contest or oppose any such
transaction which the Board of Directors or such committee determines to be
unfair, abusive or otherwise undesirable with respect to the Corporation and its
business, assets or properties or the stockholders of the Corporation,
including, without limitation, the adoption of such plans or the issuance of
such rights, options, capital stock, notes, debentures or other evidence of
indebtedness or other securities of the Corporation, which rights, options,
capital stock, notes, evidences of indebtedness and other securities (i) may be
exchangeable for or convertible into cash or other securities on such terms and
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<PAGE>
conditions as may be determined by the Board of Directors (or any such
committee) and (ii) may provide for the treatment of any holder or class of
holders thereof designated by the Board of Directors (or any such committee) in
respect of the terms, conditions, provisions and rights of such securities which
is different from, and unequal to, the terms, conditions, provisions and rights
applicable to all other holders thereof.
FOURTEENTH: 14.1. In addition to any requirements of law and any other
provisions of this Certificate of Incorporation or the terms of any series of
Preferred Stock or any other securities of the Corporation (and notwithstanding
the fact that a lesser percentage may be specified by law, this Certificate of
Incorporation or the terms of any series of Preferred Stock or any other
securities of the Corporation), the affirmative vote of the holders of shares
representing at least seventy-five percent (75%) of the votes which all the
stockholders would be entitled to cast at any election of directors or class of
directors (other than an election of the Class A Director) shall be required (x)
to authorize any amendment, alteration or repeal of any provision of Article
EIGHTH, Article ELEVENTH, Article TWELFTH, Article THIRTEENTH or this Article
FOURTEENTH, or (y) to adopt any provision in this Certificate of Incorporation
which is inconsistent with Article EIGHTH, Article ELEVENTH, Article TWELFTH or
Article THIRTEENTH or this Article FOURTEENTH.
14.2. In furtherance and not in limitation of the power conferred upon the
Board of Directors by law, the Board of Directors shall have power to make,
adopt, alter, amend and repeal from time to time By-laws of the Corporation,
subject to the right of the stockholders entitled to vote with respect thereto
to amend, alter and repeal, in accordance with Section 14.3 hereof and the
provisions of such By-laws, By-laws made by the Board of Directors.
14.3. Subject to the following paragraph, the By-laws of the Corporation
may be altered, amended or repealed or new by-laws may be adopted by the
affirmative vote of the holders of shares representing a majority of the votes
which all of the stockholders would be entitled to cast at any election of
directors or class of directors (other than an election of the Class A Director)
at any regular meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment, repeal or adoption
of new by-laws shall have been stated in the notice of such special meeting.
Notwithstanding any other provision of law, this Certificate of
Incorporation (including the preceding paragraph) or the By-Laws, and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of shares representing at least 75% of the votes
which all the stockholders would be entitled to cast at any election of
directors or class of directors (other than an election of the Class A Director)
shall be required to amend or repeal, or to adopt any
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<PAGE>
provision inconsistent with, the provisions of Sections 1.10 or 1.11, the
provisions of Article II, or the provisions of Section 6.2 of the By-laws of the
Corporation. In addition, the affirmative votes of said holders shall be
required to permit the stockholders to adopt any provision of the Certificate of
Incorporation which is inconsistent with any such provision of the By-laws.
IN WITNESS WHEREOF, Casella Waste Systems, Inc. has caused this
Certificate to be signed in its name and on its behalf by its President
this 3rd day of November, 1997.
CASELLA WASTE SYSTEMS, INC.
By: /s/ John W. Casella
-------------------
John W. Casella
President
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Exhibit 5.1
-----------
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 FAX 617-526-5000
November 18, 1998
Casella Waste Systems, Inc.
25 Greens Hill Lane
Rutland, Vermont 05701
Re: Amended and Restated 1997 Stock Incentive Plan
Non-Statutory Stock Options Pursuant to Written Option Agreements
-----------------------------------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to an aggregate of 1,311,000 shares of the Class A Common
Stock, $0.01 par value per share (the "Shares"), of Casella Waste Systems, Inc.,
a Delaware corporation (the "Company"), issuable under the Company's Amended and
Restated 1997 Stock Incentive Plan (the "Plan") and certain Non-Statutory Stock
Options Pursuant to Written Option Agreements (the "Agreements").
We have examined the Certificate of Incorporation of the Company and the
By-Laws of the Company, each as amended to date, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the shares in accordance with the Plan or the Agreements, as the case
may be, to register and qualify the shares for sale under all applicable state
securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Statute and the federal laws of the United States of
America.
<PAGE>
Casella Waste Systems, Inc.
November 18, 1998
Page 2
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan and the Agreements, as
described in the Registration Statement, and such shares, when issued in
accordance with the terms of the Plan and the Agreements, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated June 12, 1998
included in Casella Waste Systems, Inc.'s Form 10-K (File No. 98654351) and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
November 16, 1998
