AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WASTE INDUSTRIES, INC.
(Exact name of issuer as specified in its charter)
NORTH CAROLINA 56-0954929
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3949 BROWNING PLACE, RALEIGH, NORTH CAROLINA 27609
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(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE NON-QUALIFIED STOCK OPTION PLAN
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1997 STOCK PLAN
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(Full title of the plans)
ROBERT H. HALL
CHIEF FINANCIAL OFFICER, SECRETARY AND TREASURER
WASTE INDUSTRIES, INC.
3949 BROWNING PLACE
RALEIGH, NORTH CAROLINA 27609
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(Name and address of agent for service)
(919) 782-0095
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(Telephone number, including area code, of agent for service)
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Copies to:
Donald R. Reynolds, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNTS TO OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED BE REGISTERED PER SHARE* OFFERING PRICE REGISTRATION FEE
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Common Stock, no par value
per share 2,326,000 SHARES (1) $19.6875(2) $45,793,125(2) $13,876.70(2)
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(1) INCLUDES 526,000 SHARES RESERVED FOR ISSUANCE UNDER THE EMPLOYEE
NON-QUALIFIED STOCK OPTION PLAN AND 1,800,000 SHARES RESERVED FOR ISSUANCE
UNDER THE 1997 STOCK PLAN.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(C), BASED ON THE AVERAGE OF THE HIGH AND LOW PRICES
FOR THE COMMON STOCK ON THE NASDAQ NATIONAL MARKET SYSTEM ON MARCH 23,
1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by Waste Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(a) The Company's prospectus dated June 13, 1997 filed
pursuant to Rule 424(b)(4) promulgated under the Securities Act of
1933, as amended;
(b) The Company's Quarterly Reports for the quarters ended
June 30 and September 30, 1997, filed pursuant to Section 13 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act");
(c) The Company's Current Reports on Form 8-K filed August 15,
1997 and September 15, 1997, as amended, pursuant to Section 13 of the
Exchange Act; and
(d) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-22417)
filed pursuant to Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of
a post-effective amendment that indicates that all securities offered under this
registration statement have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the fullest extent permitted
by Section 55-8-30(e) of the North Carolina Business Corporation Act (the
"Business Corporation Act") and (ii) require the Company to indemnify its
directors and officers to the fullest extent permitted by Section 55-8-50
through 55-8-58 of the Business Corporation Act, including circumstances in
which indemnification is otherwise discretionary. Pursuant to Section 55-8-51
and 55-8-57 of the Business Corporation Act, a corporation generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
such positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. The Company believes that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate the directors' duty of care,
and, in appropriate circumstances, equitable remedies such as injunctive or
other forms of non-monetary relief will remain available under the Business
Corporation Act. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company, for acts
or omissions that the director believes to be contrary to the best interests of
the Company or its shareholders, for any transaction from which the director
derived an improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Company or its shareholders when the
director was aware or should have been aware of a risk of serious injury to the
Company or its shareholders, for acts or omissions that constitute an unexcused
pattern of inattention that amounts to an abdication of the director's duty to
the Company or its shareholders, for improper transactions between the director
and the Company and for improper distributions to shareholders and loans to
directors and officers. These provisions do not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Company's Bylaws require the Company to indemnify its directors and
officers against all expense, liability and loss (including attorneys' fees,
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) and other amounts actually and reasonably incurred in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Company or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interest of the Company and, with respect to any
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The Company's Bylaws also set forth certain procedures that will apply in the
event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
Exhibit Number Description
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5.1 Opinion of Wyrick Robbins Yates & Ponton LLP
10.1* 1997 Stock Plan
10.4 Employee Non-Qualified Stock Option Plan
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Wyrick Robbins Yates & Ponton LLP (included
in Exhibit 5.1)
24.1 Power of Attorney (see page S-1)
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* previously filed.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under
the 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the 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
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the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 the City of Raleigh, State of North Carolina, on the 24th
day of March 1998.
WASTE INDUSTRIES, INC.
By: /s/ Lonnie C. Poole, Jr.
__________________________
Lonnie C. Poole, Jr.,
Chairman
POWER OF ATTORNEY
Each person whose signature appears below in so signing also makes,
constitutes and appoints Lonnie C. Poole, Jr. and Robert H. Hall, and each of
them, his true and lawful attorneys-in-fact and agent, with full power of
substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments and
post-effective amendments to this Form S-8, with exhibits thereto and other
documents in connection therewith, and hereby ratifies and confirms all that
said attorneys-in-fact or his or their substitute or substitutes may do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Form S-8 has been signed below by the following persons in the capacities
and on the date indicated.
Signature Title Date
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/s/ Lonnie C. Poole, Jr. Director, Chairman and Chief Executive March 24, 1998
Officer (Principal Executive Officer)
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Lonnie C. Poole, Jr.
Director, Vice President, Chief Financial March 24, 1998
Officer and Treasurer (Principal
/s/ Robert H. Hall Financial and Accounting Officer)
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Robert H. Hall
/s/ Jim W. Perry Director March 24, 1998
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Jim W. Perry
Director
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J. Gregory Poole, Jr.
/s/ Thomas F. Darden, II
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Thomas F. Darden, II Director March 24, 1998
S-1