AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 2005
REGISTRATION NO.
333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
AMERICAN ECOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
____________
DELAWARE 4953 95-3889638
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation) Classification Code Number) Identification Number)
300 E. MALLARD, SUITE 300, BOISE, ID 83706-6650
(208) 331-8400
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________
JAMES R. BAUMGARDNER
CHIEF FINANCIAL OFFICER AND CORPORATE SECRETARY
AMERICAN ECOLOGY CORPORATION
300 E. MALLARD, SUITE 300
BOISE, ID 83706-6650
(208) 331-8400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
PAUL R. BOYD, ESQ.
STOEL RIVES LLP
101 S. CAPITOL BOULEVARD
SUITE 1900
BOISE, ID 83702-7705
(208) 389-9000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of securities to Amount to be offering price per aggregate offering Amount of
be registered registered share (1) price registration fee
-------------------------------------------------------------------------------------------------------------
Common Stock 6,117,827 17.625 107,826,701 12,692
--------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933. The calculation of the
registration fee is based on the average of the high and low price for the
Common Stock on June 30, 2005 as reported by Nasdaq on www.nasdaq.com for NASDAQ
--------------
National Market issues.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. The
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 6, 2005
AMERICAN ECOLOGY COPORATION
6,117,827 Shares of Common Stock
The selling stockholders of American Ecology Corporation described in this
prospectus may sell shares of our common stock offered by this prospectus.
The selling stockholders may sell shares of our common stock from time to
time at market prices, in negotiated transactions or otherwise. The selling
stockholders may sell the shares directly or through underwriters, brokers or
dealers. The selling stockholders will pay commissions or discounts to
underwriters, brokers or dealers in amounts to be negotiated prior to the sale.
We will not receive any of the proceeds from the sale of the shares by the
selling stockholders. See "Plan of Distribution" on page 8 for more information
on this topic.
Our common stock is quoted for trading on the NASDAQ National Market System
under the symbol "ECOL." On June 30, 2005, the last sale price for our common
stock as reported on the NASDAQ National Market System was $ 17.90 per share.
SEE "RISK FACTORS" ON PAGE 2 FOR A DISCUSSION OF RISKS RELATED TO AN
INVESTMENT IN OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
____________
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED IN THIS PROSPECTUS OR
INCORPORATED BY REFERENCE. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH DIFFERENT INFORMATION. NEITHER WE, NOR ANY OTHER PERSON ON OUR BEHALF, IS
MAKING AN OFFER TO SELL OR SOLICITING AN OFFER TO BUY ANY OF THE SECURITIES
DESCRIBED IN THIS PROSPECTUS IN ANY STATE WHERE THE OFFER IS NOT PERMITTED BY
LAW. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE
AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THIS PROSPECTUS. THERE MAY
HAVE BEEN CHANGES IN OUR AFFAIRS SINCE THE DATE OF THE PROSPECTUS.
____________
The date of this prospectus is , 2005.
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TABLE OF CONTENTS
PAGE
AMERICAN ECOLOGY CORPORATION . . . . . . . . . . . . . . . . . 2
FORWARD LOOKING STATEMENTS . . . . . . . . . . . . . . . . . . 2
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . 2
WHERE YOU CAN FIND MORE INFORMATION - INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE. . . . . . . . . . . . . . . . . . 6
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . 6
SELLING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . 7
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . 8
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i
AMERICAN ECOLOGY CORPORATION
American Ecology Corporation ("American Ecology") is a hazardous,
non-hazardous, industrial, and radioactive waste management company providing
treatment and disposal service to commercial and government entities including
nuclear power plants, refineries, chemical production plants, steel mills, the
U.S. Department of Defense, medical facilities, universities and research
institutions. The majority of our revenues are derived from fees charged for
waste treated and disposed of at our owned facilities. We also manage the
transportation of wastes to our facilities and we package waste, broker
arrangements with other service providers and transport waste to those service
providers' facilities. American Ecology was incorporated in Delaware in 1987.
Our executive offices are located at 300 E. Mallard, Suite 300, Boise, ID
83706-6650, and our telephone number is (208) 331-8400.
FORWARD LOOKING STATEMENTS
Statements and information included in this Registration Statement on Form
S-3 that are not purely historical are forward-looking statements within the
"safe harbor" provisions of the Private Securities Litigation Reform Act of
1995. Forward-looking statements include statements regarding our expectations,
intentions, beliefs and strategies regarding the future including sales,
earnings per share, cost structure, market position, market growth opportunities
and new products. We may make other forward-looking statements from time to
time, including in press releases and public conference calls and webcasts. All
forward-looking statements made by us are based on information available to us
at the time the statements are made, and we assume no obligation to update any
forward-looking statements. Actual results are subject to a number of risks and
uncertainties that could cause actual results to differ materially from those
included in the forward-looking statements. Some of these risks and
uncertainties are discussed below in "Risk Factors."
RISK FACTORS
You should carefully consider the following risk factors and other
information in or incorporated in this prospectus before deciding to invest in
shares of our common stock. The risks and uncertainties described below are not
the only ones we face. Additional risks and uncertainties not known to us or
that we now think are immaterial may also impair our business operations. If
any of the following risks actually occur, our business, financial condition and
results of operations could be materially and adversely affected. If that
occurs, the trading price of our common stock could decline, and you may lose
all or part of your investment.
KEY PERSONNEL
We have a relatively flat management structure and we rely on the continued
service of our senior management. The loss of services of any key management
employee could adversely effect our business or the price of our securities.
Also, our future success depends on our ability to identify, attract, hire,
train and motivate other highly skilled personnel. Failure to do so may
adversely affect future results.
COMPLIANCE AND CHANGES WITH APPLICABLE LAWS AND REGULATIONS
The changing regulatory framework governing our diverse business creates
significant risks, including potential liabilities from violations of
environmental statutes and regulations. Failure to timely obtain or comply with
applicable federal, state and local governmental licenses, permits or approvals
for our waste treatment and disposal facilities could prevent or inhibit us from
operating our facilities and providing services, resulting in a potentially
significant loss of revenue and earnings. Changes in laws or regulations or
changes in the enforcement or interpretation of existing laws and regulations
may require that we modify existing operating licenses or permits, or that we
obtain additional approvals. Any new governmental requirements that raise
compliance standards or require changes in operating practices or technology
requirements may impose significant costs. Failure to comply with applicable
statutes, regulations, licenses and permits may result in the imposition of
substantial fines and penalties and could adversely affect our ability to carry
on our business.
Our revenues are primarily generated as a result of requirements imposed on
our customers under federal and state laws, regulations, and programs to protect
public health and the environment. If requirements to comply with these laws
and regulations, particularly those relating to the treatment or disposal of
PCB, hazardous, NORM/NARM and
2
low-level radioactive waste, were substantially relaxed or less vigorously
enforced, demand for our services could materially decrease and our revenues
could be significantly reduced.
EXPOSURE TO LITIGATION
Because our personnel routinely handle radioactive, PCB and hazardous
materials, we may be subject to liability claims by employees, contractors and
other third parties. There can be no assurance that our existing liability
insurance is adequate to cover claims asserted against us or that we will be
able to maintain adequate insurance in the future. Adverse rulings in ongoing
legal matters could also have a material adverse effect on us.
ACCESS TO CAPITAL
We require cost-effective access to capital to implement our strategic and
financial plan. If we cannot maintain access to capital or raise additional
capital, we may need to delay or scale back planned infrastructure improvements
or disposal capacity expansions. This could negatively impact our ability to
generate earnings. We currently have cash and short-term investments on hand to
fund our budgeted 2005 capital projects and we believe we have constructed
sufficient disposal capacity to meet near-term needs. No assurance can be
given, however, that we will continue to have cash on hand for these purposes or
maintain cost-effective access to the capital markets.
ACCESS TO INSURANCE AND FINANCIAL ASSURANCES
We are required by license, permit, and prudence to maintain a variety of
insurance instruments and financial assurances. Without cost-effective access to
insurance and/or financial assurance markets, our ability to operate our
facilities would be materially and adversely affected. Although we expect to
renew these policies prior to expiration, no guarantee can be given that we will
be able to renew or procure new financial assurance insurance on favorable
terms. The inability to obtain cost-effective insurance and/or financial
assurance could have a material adverse effect on us.
IMPLEMENTATION OF NEW TECHNOLOGIES
We expect to introduce new technologies at our facilities from time to
time. We have experienced difficulties implementing new technologies in the
past. If we cannot cost-effectively deploy new treatment technologies in
response to market conditions and customer requirements, our business could be
adversely affected.
COMPETITIVE ENVIRONMENT
We face competition from companies with much greater resources and
potentially more cost-effective services. An increase in the number of
commercial treatment or disposal facilities for hazardous or radioactive waste
in the United States, or a decrease in the treatment or disposal fees charged by
competitors could negatively affect our results of operations. Our business is
heavily affected by waste tipping fees assessed by state regulatory entities.
These fees, which vary from state to state, are periodically adjusted. Such
adjustments may significantly impact the competitive environment in which we
conduct business either positively or negatively.
ECONOMIC CONDITIONS AFFECTING OUR CUSTOMERS
Our hazardous waste facilities serve steel mills, refineries, chemical
production plants and other basic industries that are, or may be, affected by
general economic conditions. During periods of economic weakness, these
industries may curtail production activities producing waste and/or delay
spending on plant maintenance, waste clean-up work and other discretionary
projects.
POTENTIAL LOSS OF MAJOR CONTRACTS
Customers periodically review their contracts with us and may, from time to
time, opt not to renew or extend their disposal contracts. A loss of one or
more of our large contracts could significantly reduce our revenues and
negatively impact earnings, and materially and adversely affect our results of
operations.
3
ABILITY TO COLLECT ON INSURANCE
In July 2004, a fire at our Texas waste treatment facility substantially
impaired our ability to operate that facility at full capacity and consequently
our revenues in fiscal 2004 declined. While we believe our business
interruption claim filed in response to the fire and other filed insurance
claims are valid, we do not assure you that we can collect on amounts claimed.
POTENTIAL FIRES OR OTHER INCIDENTS LIMITING OPERATIONS
We are subject to unexpected occurrences related, or unrelated, to our
daily handling of dangerous substances. A fire or other incident, such as the
fire in July 2004 at our Texas waste treatment facility, could impair one or
more of the facilities from performing their normal operations which could have
a material adverse impact on us.
ACCESS TO COST EFFECTIVE RAIL TRANSPORTATION SERVICE
Revenue at our Grand View, Idaho facility is subject to potential risks
from disruptions in rail transportation service. Large volume base business and
event business at this facility frequently arrive by rail. Events such as
strikes, natural disasters and other acts of God, war, or terror could delay
shipments and reduce both volumes and revenues. In addition, rail car service
may be limited by economic conditions, specifically including increasing demand
for rail service, which may result in sustained periods of slower service and
make it difficult to acquire sufficient rolling stock. These economic
conditions could also result in lower volumes and revenues. During the second
half of 2004 we experienced delays in receiving waste because rail transporters
failed to meet anticipated schedules and because it was not practical to replace
these transporters with other service providers. No assurance can be given that
we can procure transportation services at historical rates. The lack of
railcars, now and in the future, could limit our ability to implement our growth
plan and increase revenue at our Grand View facility.
UTILIZATION OF NET OPERATING LOSS CARRYFORWARDS
As of March 31, 2005, we had federal net operating loss carryforwards of
approximately $36 million. Section 382 of the Internal Revenue Code imposes an
annual limitation on the amount of net operating loss carryforwards that may be
used to offset taxable income when a corporation has undergone significant
changes in its ownership. Our ability to utilize the net operating losses may be
limited by the sale of common stock registered in this offering. To the extent
our use of net operating loss carryforwards is limited by Section 382, our
income would be subject to cash payments of income tax earlier than it would if
we were able to fully use our net operating loss carryforwards.
ABILITY TO PERFORM CONTRACTS AS REQUIRED
Various contractual agreements require us to meet qualitative and
quantitative performance criteria in providing waste services. The ability to
meet the required performance criteria, in some cases, requires that we expend
significant additional resources. If we were unable to meet the required
performance criteria we could be subject to substantial monetary penalties
and/or loss of the affected contracts.
SIGNIFICANT SALES BY THE SELLING STOCKHOLDERS MAY CAUSE THE MARKET PRICE OF OUR
STOCK TO DECLINE
Sales of a substantial number of the shares covered by this offering, or
the perception that such sales could occur, could cause the market price of our
common stock to decline. While we have no current plans to raise capital
through the sale of additional equity securities, the sale of the shares covered
by this offering could impair our ability to raise capital through the sale of
such securities.
4
WHERE YOU CAN FIND MORE INFORMATION - INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. We have filed with the SEC a registration statement under
the Securities Act for the common stock offered by this prospectus. For further
information, you should refer to the registration statement and its exhibits.
You can inspect and copy our reports, proxy statements, the registration
statement and other information filed with the SEC at the offices of the SEC's
Public Reference Room at 450 Fifth Street, N.W., Room 1024, Washington, D.C.,
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. The SEC maintains an Internet Website at
http://www.sec.gov where you can obtain some of our SEC filings. In addition,
we post the reports we file with the SEC and other information on our Internet
Website at http://www.americanecology.com, Investors.
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means we can disclose information to you by referring to
those documents. The information incorporated by reference is an important part
of this prospectus, and information we file later with the SEC will
automatically update and take the place of this information. We are
incorporating by reference in this prospectus the following documents filed with
the SEC under the Exchange Act:
- Annual Report on Form 10-K for the year ended December 31, 2004
- Amendment to Annual Report on Form 10-K/A for the year ended December
31, 2004
- Quarterly Reports on Form 10-Q for the period ended March 31, 2005
- Current Reports on Form 8-K dated as of February 8, 2005, February 14,
2005, March 14, 2005, April 19, 2005, May 25, 2005, June 8, 2005 and
June 9, 2005
- All other reports filed by us under Section 13(a) or 15(d) of the
Exchange Act since December 31, 2004
- The description of our common stock contained in our registration
statements under the Exchange Act, including any amendment or report
updating the description
In addition, we incorporate by reference all documents we will file with
the SEC in the future under Sections 13, 14 or 15(d) of the Exchange Act until
the termination of this offering. We refer to these documents, and the
documents listed above, in this prospectus as "incorporated documents." The
documents listed above or later filed by us under Section 13 or 14 of the
Exchange Act before the filing of our Annual Report on Form 10-K for the current
fiscal year with the SEC will not be considered incorporated documents or be
incorporated by reference in this prospectus or be a part of this prospectus
from and after filing of that Annual Report on Form 10-K. You should consider
all incorporated documents a part of this prospectus.
You may request, without charge, a copy of any incorporated document
(excluding exhibits, unless we have specifically incorporated an exhibit in an
incorporated document) by writing or telephoning us at our principal executive
offices at the following address:
American Ecology Corporation
Attention: James R. Baumgardner, Corporate Secretary
300 E. Mallard, Suite 300
Boise, ID 83706-6650
Telephone: (208) 331-8400
5
USE OF PROCEEDS
American Ecology will not receive any proceeds from the shares sold by the
selling stockholders in this offering.
SELLING STOCKHOLDERS
The following table sets forth information provided to us by the selling
stockholders.
Amount of
common stock
beneficially Amount offered Percentage of
owned by for selling Shares common stock
shareholder stockholder's beneficially outstanding
before account by this owned after owned after
Name of selling stockholder offering prospectus offering offering
------------------------------ ------------ --------------- ------------ --------------
Rotchford L. Barker 2,987,501 2,987,501 0 0%
Connie A. Barker 33,000 33,000 0 0%
Edward F. Heil 2,467,866 2,467,866 0 0%
Edward F. Heil Trust FBO 209,820 209,820 0 0%
Sandra Heil
Edward F. Heil Trust FBO 209,820 209,820 0 0%
Edward F. Heil, Jr.
Edward F. Heil Trust FBO Karen 209,820 209,820 0 0%
Heil
American Ecology prepared this table based on the information supplied to
it by the selling stockholders named in the table. Messrs. Rotchford L. Barker
and Edward F. Heil are directors of American Ecology. Mr. Barker originally
joined the Board of Directors in 1996. Mr. Barker did not stand for re-election
to the Board at its May 2002 annual meeting, but returned to the Board to fill a
vacancy created by a director who resigned in July 2002. Mr. Heil joined the
Board of Directors in 1994. The remaining selling stockholders are Mr. Barker's
daughter, Connie Barker, and trusts established for the benefit of Mr. Heil's
children.
The selling stockholders listed in the above table may have sold or
transferred, in transactions exempt from the registration requirements of the
Securities Act, some or all of their shares since the dates as of which the
information in the above table was supplied to American Ecology. Information
about the selling stockholders may change over time. Any changed information
will be set forth in prospectus supplements, if required.
Because the selling stockholders may offer all or some of their shares from
time to time, American Ecology cannot accurately estimate the amount of shares
of common stock that will be held by the selling stockholders upon the
termination of any particular offering. See "Plan of Distribution."
6
PLAN OF DISTRIBUTION
We are registering shares of common stock on behalf of the selling
stockholders and we anticipate keeping this registration statement effective for
a period of two years from its effective date. "Selling stockholders" includes
donees, pledges, transferees or successors-in-interest selling securities
received from a named selling stockholder as a gift, pledge or other non-sale
related transfer after the date of this prospectus. All costs, expenses and
fees (other than underwriting discounts, commissions or fees attributable to the
sale of the shares or any counsel, accountants or other persons retained or
employed by the selling stockholders) in connection with the registration of the
shares of common stock offered by this prospectus will be borne by American
Ecology. Brokerage commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by the selling stockholders.
Sales of shares may be effected by the selling stockholders from time to time in
one or more types of transactions, including block transactions
- on the NASDAQ National Market System,
- in the over-the-counter market,
- in negotiated transactions,
- through put or call options transactions relating to the shares, and
- through short sales of shares,
or a combination of these methods of sale or through any lawful manner, at
fixed prices that may be changed, at market prices prevailing at the time of
sale or at negotiated prices. The selling stockholders have advised us that
they have not entered into any agreements, understandings or arrangements with
any underwriters or broker-dealers regarding the sale of their shares, nor is
there an underwriter or coordinating broker acting in connection with the
proposed sale of shares by the selling stockholders.
The selling stockholders may sell shares directly to purchasers or to or
through underwriters or broker-dealers, who may act as agents or principals.
The underwriters or broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders and/or the
purchasers of shares for whom the underwriters or broker-dealers may act as
agents or to whom they sell as principal, or both. The amount and form of
compensation for these services will be determined by the selling stockholders
and the purchaser or purchasers, and may be in excess of customary commissions.
The selling stockholders and any underwriters or broker-dealers that act in
connection with the sale of shares might be deemed to be "underwriters" within
the meaning of Section 2(a)(11) of the Securities Act, and any commissions
received by these underwriters or broker-dealers and any profit on the resale of
the shares sold by them while acting as principals might be deemed to be
underwriting discounts or commissions under the Securities Act. The selling
stockholders may agree to indemnify any underwriter, agent, or broker-dealer
that participates in transactions involving sales of the shares against
specified liabilities, including liabilities arising under the Securities Act.
Because selling stockholders may be deemed to be "underwriters" within the
meaning of Section 2(a)(11) of the Securities Act, the selling stockholders will
be subject to the prospectus delivery requirements of the Securities Act, which
may include delivery through the facilities of the Nasdaq National Market System
pursuant to Rule 153 under the Securities Act. American Ecology has informed
the selling stockholders that the anti-manipulative provisions of Regulation M
of the Exchange Act may apply to their sales in the market.
In addition to selling their shares under this prospectus, the selling
stockholders also may resell all or a portion of their shares in open market
transactions in reliance upon Rule 144 under the Securities Act, provided they
meet the criteria and conform to the requirements of that rule.
7
If the selling stockholders notify us of any material arrangement entered
into with an underwriter or broker-dealer for the sale of shares through a block
trade, special offering, exchange distribution or secondary distribution or a
purchase by a broker or dealer, a supplement to this prospectus will be filed,
if required, under Rule 424(b) under the Securities Act, disclosing
- the name of each such selling stockholder and of the participating
underwriter or broker-dealer;
- the number of shares involved;
- the price at which the shares were sold;
- the commissions paid or discounts or concessions allowed to the
underwriter or, broker-dealer; and
- other facts material to the transaction.
In addition, if we are notified by a selling stockholder that a donee,
pledgee, transferee or other successor-in-interest intends to sell more than 500
shares, a supplement to this prospectus will be filed.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of American Ecology Corporation and subsidiaries incorporated in this
prospectus by reference from American Ecology's Annual Report on Form 10-K for
the year ended December 31, 2004 filed March 1, 2005 and on Form 10-K/A for the
year ended December 31, 2004 filed April 25, 2005 have been audited by Moss
Adams LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
LEGAL MATTERS
The validity of the shares of common stock offered in this prospectus will
be passed upon for us by Stoel Rives LLP, Boise, Idaho.
8
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by American
Ecology and the selling stockholders in connection with the offer and sale of
the common stock being registered. All amounts are estimates except the
registration fee.
Registration fee . . . . . . . . . . . . . . . $12,692
Accounting fees and expenses . . . . . . . . . $5,000*
Legal fees and expenses. . . . . . . . . . . . $15,000*
Miscellaneous. . . . . . . . . . . . . . . . . $1,000*
--------
Total . . . . . . . . . . . . . . . . . . $33,692*
___________________
*Estimated
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
We have broad powers to indemnify directors and officers against
liabilities they may incur in these capacities under the Delaware General
Corporation Law (the "DGCL"). Our Certificate of Incorporation requires that we
indemnify officers and directors and eliminates directors' liability to American
Ecology for monetary damages, in each case to the full extent allowed under the
DGCL.
Section 145(a) of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she 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 or her
conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if he or she
acted under similar standards, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to be indemnified for such expenses
which the court shall deem proper.
Section 145 of the DGCL further provides that (i) to the extent that a
former or present director or officer of a corporation has been successful in
the defense of any action, suit or proceeding referred to in subsections (a) and
(b) or in the defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith; (ii) indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and (iii) the corporation may
purchase and maintain insurance on behalf of any present or former director,
officer, employee or agent of the corporation or any person who at the request
of the corporation was serving in such capacity for another entity against any
liability asserted against such person and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
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Article VII of our Certificate of Incorporation requires that we indemnify
to the full extent permitted by the DGCL any person for liabilities incurred in
his or her capacity as a director or officer of American Ecology, including
service at our request in any capacity at another entity. We are obligated to
pay in advance the person's expenses incurred in defending any proceeding in
advance if the person agrees to repay the advance if it is determined ultimately
that he or she is not entitled to be indemnified.
Article VII also provides that the personal liability of our directors to
American Ecology or its stockholders for monetary damages for any breach of
fiduciary duty by the director as a director is limited or eliminated to the
fullest extent permitted by the DGCL.
ITEM 16. EXHIBITS
(a) Exhibits
5.1 Opinion of Stoel Rives LLP*
23.1 Consent of Moss Adams LLP
23.2 Consent of Stoel Rives LLP (included in Exhibit 5.1)*
24.1 Powers of Attorney (included on signature page)
________________________________
* To be filed by amendment
ITEM 17. 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:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which is registered) and any deviation from the law or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each new 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.
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(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 section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) 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 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, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boise, State of Idaho, on July 6, 2005.
AMERICAN ECOLOGY CORPORATION
By /S/ James R. Baumgardner
-------------------------------------------
James R. Baumgardner
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints, jointly
and severally, Stephen A. Romano and James R. Baumgardner, and each of them,
attorneys-in-fact for the undersigned, each with the power of substitution, for
the undersigned in any and all capacities to sign any and all amendments to this
Registration Statement (including post-effective amendments and any registration
statement relating to the same offering as this Registration Statement that is
to be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, of his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the following
capacities on July 6, 2005.
Signature Title
--------- -----
/S/ Stephen A. Romano President, Chief Executive Officer, Chief
------------------------------ Operating Officer, Director
Stephen A. Romano (Principal Executive Officer)
/S/James R. Baumgardner Senior Vice President, Chief Financial
------------------------------ Officer, Treasurer and Secretary
James R. Baumgardner (Principal Financial and Accounting
Officer)
/S/ Rotchford L. Barker Director
------------------------------
Rotchford L. Barker
/S/ Roy C. Eliff Director
------------------------------
Roy C. Eliff
/S/ Edward F. Heil Chairman of the Board of Directors
------------------------------
Edward F. Heil
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/S/ Kenneth C. Leung Director
------------------------------
Kenneth C. Leung
/S/ Richard Riazzi Director
------------------------------
Richard Riazzi
/S/ Jimmy D. Ross Director
------------------------------
Jimmy D. Ross
/S. Richard T. Swope Director
------------------------------
Richard T. Swope
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EXHIBIT INDEX
EXHIBIT
-------
5.1 Opinion of Stoel Rives LLP*
23.1 Consent of Moss Adams LLP
23.2 Consent of Stoel Rives LLP (included in Exhibit 5.1)*
24.1 Powers of Attorney (included on signature page)
________________________
* To be filed by amendment