SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS
FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT RULE 13d-2(a)
(Amendment No. 5)
WCA Waste Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
92926K103
(CUSIP Number)
Joseph E. LoConti, 6140 Parkland Boulevard,
Suite 300, Mayfield Heights, OH 44124 (440) 995-5600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 19, 2011
(Date of Event which Requires Filing of this
Statement)
If the filing
person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and
is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.
¨
Note
. Schedules filed in paper format shall include
a signed original and five copies of the schedule including all exhibits.
See
§ 240.13d-7 for other parties
to whom copies are to be sent.
The remainder of this cover page shall be filled out for
a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject
to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,
see
the
Notes
)
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1
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Joseph E. LoConti
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
x
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(see instructions)
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(b)
o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
(see instructions)
PF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
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1,942,093
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8
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SHARED VOTING POWER
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9
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SOLE DISPOSITIVE POWER
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1,942,093
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10
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SHARED DISPOSITIVE POWER
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,942,093
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
(see instructions)
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x
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
7.93%
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14
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TYPE OF REPORTING PERSON
(see instructions)
IN
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1
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Daniel J. Clark
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
x
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(see instructions)
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(b)
o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
(see instructions)
PF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
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963,977
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8
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SHARED VOTING POWER
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777,778
(1)
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9
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SOLE DISPOSITIVE POWER
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963,977
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10
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SHARED DISPOSITIVE POWER
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777,778
(1)
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,741,755
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
(see instructions)
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x
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
7.11%
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14
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TYPE OF REPORTING PERSON
(see instructions)
IN
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(1)
Mr. Clark may be deemed the beneficial owner
of up to 777,778 Shares that may be issued to Live Earth Funding LLC, an entity which Mr. Clark has an ownership interest and voting
discretion, upon satisfaction of certain earn-out conditions set forth in the Agreement (defined below).
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1
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Gregory J. Skoda
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
x
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(see instructions)
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(a)
o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
(see instructions)
WC
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
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8
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SHARED VOTING POWER
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1,248,480
(2)
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9
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SOLE DISPOSITIVE POWER
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10
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SHARED DISPOSITIVE POWER
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1,248,480
(2)
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,248,480
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
(see instructions)
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x
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.10%
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14
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TYPE OF REPORTING PERSON
(see instructions)
IN
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(2)
Mr.
Skoda may be deemed the beneficial owner of the 451,813 Shares owned by the Patricia A. Skoda Revocable Trust, may be deemed the
beneficial owner of the 18,889 Shares owned by the Gregory J. Skoda Revocable Trust, of which Mr. Skoda is the Trustee, and may
be deemed the beneficial owner of up to 777,778 Shares that may be issued to Live Earth Funding LLC, an entity which Mr. Skoda,
as trustee of the Gregory J. Skoda Revocable Trust, has an ownership interest and voting discretion, upon satisfaction of certain
earn-out conditions set forth in the Agreement (defined below).
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1
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable
Trust
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
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(a)
x
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(see instructions)
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(a)
o
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
(see instructions)
WC
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE VOTING POWER
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8
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SHARED VOTING POWER
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1,248,480
(3)
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9
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SOLE DISPOSITIVE POWER
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10
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SHARED DISPOSITIVE POWER
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1,248,480
(3)
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,248,480
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
(see instructions)
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o
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.10%
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14
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TYPE OF REPORTING PERSON
(see instructions)
IN
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(3)
The
Patricia A. Skoda Revocable Trust may be deemed the beneficial owner of 18,889 Shares owned by The Gregory J. Skoda Revocable
Trust, of which Mr. Skoda, Mrs. Skoda’s husband, is the Trustee, and may be deemed the beneficial owner of up to 777,778
Shares that may be issued to Live Earth Funding LLC, an entity which Mr. Skoda has an ownership interest and voting discretion,
upon satisfaction of certain earn-out conditions set forth in the Agreement (defined below).
This Amendment No. 5 (the “Amendment”) to Schedule 13D
is filed by Joseph E. LoConti, Daniel J. Clark, Gregory J. Skoda and the Patricia A. Skoda Revocable Trust dated June 5, 2005 relating
to shares of common stock, par value $0.01 per share (the “Shares”), of WCA Waste Corporation (the “Issuer”).
The Amendment amends and restates the following Items of the Schedule 13D filed on October 30, 2009, and amended by Amendment No.
1 to the Schedule 13D filed on December 17, 2009, Amendment No. 2 to the Schedule 13D filed on January 11, 2010, Amendment No.
3 to the Schedule 13D filed on January 21, 2010 and Amendment No. 4 to the Schedule 13D filed on September 3, 2010 (as amended,
the “Schedule 13D”).
Item 4. Purpose of Transaction.
Each Reporting Person has acquired the Shares for investment purposes. Each
Reporting Person expects to continuously review his or its investment in the Issuer and, depending on various factors, including
but not limited to, the price of the Shares, the terms and conditions of any transaction, prevailing market conditions and such
other considerations as they each deem relevant, each Reporting Person may at any time or from time to time, and subject to any
required regulatory approvals, acquire additional Shares, preferred stock or securities convertible into or exercisable or exchangeable
for Shares from time to time on the open market, in privately-negotiated transactions, directly from the Issuer, or upon the exercise
or conversion of securities convertible into or exercisable for Shares.
Each Reporting Person also may, at any time, subject to compliance
with applicable securities laws and regulatory requirements, dispose of some or all of his or its Shares or such other Issuer securities
he or it owns or may subsequently acquire, depending on various factors, including, but not limited to, the price of Shares, the
terms and conditions of any transaction and prevailing market conditions, as well as liquidity and diversification objectives.
Consistent with each of his or its investment intent, each Reporting
Persons may have discussed and intends to continue to discuss with Issuer’s management, directors and other shareholders,
the Issuer’s financial performance, strategic direction, business prospects and management, as well as various means of maximizing
shareholder value. To further the goals of improving the performance of the Issuer and enhancing the value of the investment,
discussions with the Issuer may include an active acquisition program of other companies to be undertaken by the Issuer.
On October 25, 2009, Messrs. LoConti, Clark and Skoda entered into
a letter agreement with the Issuer with respect to their desire to enter into the transaction described in Item 5(c) below pursuant
to which they, as a group, could become the “owners” (as that term is defined in Section 203 of the Delaware General
Corporation Law (the “DGCL”)) of more than 15% of the Issuer’s outstanding Shares. Pursuant to this
letter agreement, the Issuer confirmed that its Board of Directors approved the transaction reported in Item 5(c) below solely
for the purposes of Section 203(a)(1) of the DGCL, in order to provide that the restrictions on “business combinations”
as defined in Section 203 of the DGCL shall not apply to the Issuer and the Reporting Persons as a result of the transaction described
in Item 5(c) below, and the Reporting Persons agreed not to pursue such transaction without the further approval of the Issuer’s
Board of Directors.
On October 29, 2009, the Issuer announced the execution of a non-binding
letter of intent with respect to a proposed acquisition of the operations of Live Earth LLC, an Ohio limited liability company
(“Live Earth”). Messrs. LoConti and Skoda and the Trust are each non-managing and Mr. Clark is the managing
member of Live Earth.
On December 9, 2009, the Issuer, WCA of Massachusetts, LLC, a Delaware
limited liability company (“WCA Massachusetts”), WCA of Ohio, LLC, a Delaware limited liability company (“WCA
Ohio” and, together with WCA Massachusetts and the Company, the “WCA Parties”) entered into an Equity Interest
and Asset Purchase Agreement (the “Agreement”) with Live Earth, Champion City Recovery, LLC, a Massachusetts limited
liability company (“CC”), Boxer Realty Redevelopment, LLC, a Massachusetts limited liability company (“BR”),
Sunny Farms Landfill LLC, an Ohio limited liability company (“SF”) and New Amsterdam & Seneca Railroad Company,
LLC, an Ohio limited liability company (“NA” and, together with CC, BR and SF, the “Live Earth Companies”)
on the other hand (Live Earth, together with the Live Earth Companies, the “Live Earth Parties”). Pursuant
to the Agreement, the WCA Parties acquired all of the outstanding equity interests of the Live Earth Companies and certain assets
and related liabilities held by Live Earth that relate to the Live Earth Companies, including certain landfill, transfer station
and rail haul operation (the “Acquisition”).
The Agreement provided for the Issuer to pay, as acquisition consideration,
$2,000,000 in cash (plus additional amounts for working capital), the repayment of approximately $16,750,000 of indebtedness
of the Live Earth Parties, the issuance of up to 5,555,556 Shares, which included 3,555,556 Shares to be issued at closing and
up to 2,000,000 Earn-out Shares. The closing of the Acquisition occurred on December 31, 2009 and also on such date,
Live Earth delivered an aggregate of 555,554 Shares to its lenders and other creditors in satisfaction of certain obligations and
delivered the right to receive the up to 2,000,000 Earn-out Shares to its lenders in full satisfaction of indebtedness, including
the right to receive 777,778 of such Earn-out Shares to Live Earth Funding LLC, of which Mr. Clark and a trust of which Mr. Skoda
is trustee are each 50% members and co-managing members.
Live Earth retained 3,000,002 of the Shares issued at closing, which
were distributed to its members and other parties in satisfaction of certain obligations.
The Issuer will issue the 777,778 Earn-out Shares issuable to Live
Earth Funding LLC if, on or before December 31, 2012, the business operated using the Live Earth Companies and certain transferred
assets (the “Live Earth Business”) achieves $6.25 million EBITDA for any four consecutive fiscal quarters. Messrs.
Clark and Skoda (as trustee of the Gregory J. Skoda Revocable Trust) and the Trust may become beneficial owners of the up to 777,778
Shares that may be issued pursuant to the earn-out provisions due to Mr. Clark’s and Mr. Skoda’s trust’s ownership
interests in Live Earth Funding LLC. Any interests the Reporting Persons may have in such Earn-out Shares in the future are subject
to distribution determinations and membership allocations.
The receipt of the Earn-out Shares is subject to the conditions
set forth in the Agreement, which was amended by an amendment dated December 19, 2011 (the “Acquisition Agreement Amendment”)
in anticipation of the Issuer entering into an Agreement and Plan of Merger (the “Merger Agreement”) with Cod Intermediate,
LLC, a Delaware limited liability company (“Parent”), and Cod Merger Company, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (“Merger Sub”) on December 21, 2011, to adjust the payout mechanics and definition of EBITDA in
light of the potential merger. The Merger Agreement provides for the acquisition of the Issuer and cancellation of all outstanding
Shares in exchange for a cash payment of $6.50 per Share, subject to and upon satisfaction of the terms and conditions set forth
in the Merger Agreement. Any Earn-out Shares issued will also be cancelled in exchange for a cash payment of $6.50 per Share.
A copy of the Agreement is filed as Exhibit 7.3 hereto and is incorporated
by reference into this Item 4. A copy of the Acquisition Agreement Amendment is filed as Exhibit 7.6 hereto and is incorporated
by reference into this Item 4.
Effective January 15, 2010, the Issuer appointed Daniel J. Clark
to its Board of Directors to fill the vacancy created by the resignation of Ballard O. Castleman effective December 31, 2009.
On December 19, 2011, the WCA Parties entered into a Management
Operating Agreement (the “Operating Agreement”) with Live Earth, Live Earth Funding LLC and the Live Earth Companies.
The Operating Agreement provides for the management of the day-to-day business operations of certain landfill and rail transfer
facilities currently owned and/or operated by certain WCA Parties and Live Earth Companies by Live Earth and Live Earth Funding
until the earlier to occur of the issuance of the Earn-out Shares or December 31, 2012. A copy of the Agreement is filed as Exhibit
7.7 hereto and is incorporated by reference into this Item 4.
Except as indicated herein, none of the Reporting Persons have any
plan or proposal that relates to or would result in any matter required to be disclosed in response to paragraphs (a) through (j)
of Item 4 of Schedule 13D. The Reporting Persons reserve the right to modify their plans and proposals described in
this Item 4 and, as disclosed above, to acquire additional Shares or dispose of Shares from time to time depending on market conditions. Further,
subject to applicable laws and regulations, the Reporting Persons may formulate plans and proposals that may result in the occurrence
of an event set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in
Securities of the Issuer.
(a) According
to the most recently available filing with the Securities and Exchange Commission by the Issuer, there are 23,710,026 Shares outstanding.
Mr. LoConti beneficially owns 1,942,093 Shares (416,000 of such
Shares are owned by Tower 1 Partnership, LLC—Mr. LoConti is the trustee of the Joseph E. LoConti Trust dated June 22, 2002,
which is the managing member of Tower 1 Partnership, LLC, which collectively represent 7.93% of the Shares outstanding. Mr. LoConti
disclaims beneficial ownership of the Shares held by Tower 1 Partnership, LLC in excess of his pecuniary interest in such Shares,
and this Schedule 13D shall not be deemed an admission that he is the beneficial owner of such Shares for purposes of Section 16
of the Securities and Exchange Act of 1934 (the “Exchange Act”) or for any other purpose.
Mr. Clark beneficially owns 963,977 Shares and may be deemed to
beneficially own the up to 777,778 Earn-out Shares that may be issued to Live Earth Funding LLC upon satisfaction of the earn-out
conditions set forth in the Agreement, which collectively represent 7.11% of the Shares outstanding (including the 777,778 Earn-out
Shares). Mr. Clark disclaims beneficial ownership of the Earn-out Shares in excess of his pecuniary interest in such Shares, and
this Schedule 13D shall not be deemed an admission that he is the beneficial owner of such Shares for purposes of Section 16 of
the Exchange Act or for any other purpose.
Mrs. Skoda, as trustee of the Trust, beneficially owns 451,813 Shares
and may be deemed to beneficially own the up to 777,778 Earn-out Shares that may be issued to Live Earth Funding LLC upon satisfaction
of the earn-out conditions set forth in the Agreement, which collectively represent 5.95% of the Shares outstanding (including
the 777,778 Earn-out Shares). Mrs. Skoda disclaims beneficial ownership of the Earn-out Shares in excess of her pecuniary interest
in such Shares, and this Schedule 13D shall not be deemed an admission that she is the beneficial owner of such Shares for purposes
of Section 16 of the Exchange Act or for any other purpose.
Mr. Skoda, as trustee of The Gregory J. Skoda Trust, beneficially
owns 18,889 Shares and may be deemed the beneficial owner of the 451,813 Shares held by the Trust and may be deemed to beneficially
own the up to 777,778 Earn-out Shares that may be issued to Live Earth Funding LLC upon satisfaction of the earn-out conditions
set forth in the Agreement, which collectively represent 5.95% of the Shares outstanding (including the 777,778 Earn-out Shares).
Mr. Skoda disclaims beneficial ownership of the Earn-Out Shares in excess of his pecuniary interest in such Shares, and this Schedule
13D shall not be deemed an admission that he is the beneficial owner of such Shares for purposes of Section 16 of the Exchange
Act or for any other purpose.
The number of Shares beneficially owned by Messrs. LoConti, Clark
and Skoda does not include, and such Reporting Persons do not beneficially own and disclaim beneficial ownership of, any of the
211,491 Shares held as collateral for a loan by Something Better, LLC, of which such Reporting Persons own membership interests
representing substantially all of the equity.
The Reporting Persons together beneficially own 4,154,550 Shares,
which represent 16.7% of the Shares outstanding assuming the issuance of all 777,778 Earn-out Shares.
(b) Mr. LoConti
has sole power to vote, or to direct the voting of, and sole power to dispose, or to direct the disposition of, the 1,942,093 Shares
owned by him.
Mr. Clark has sole power to vote, or to direct the voting of, and
sole power to dispose, or to direct the disposition of, the 963,977 Shares owned by him, and shared power to vote, or to direct
the voting of, and shared power to dispose, or to direct the disposition of the up to 777,778 Earn-out Shares issuable to Live
Earth Funding LLC upon satisfaction of the earn-out conditions due to his membership interest and position as co-managing member.
Mrs. Skoda, as the trustee of the Trust, may be deemed to have shared
power to vote, or direct the voting of, and shared power to dispose, or to direct the disposition of, the 451,813 Shares owned
by the Trust, shared power to vote, or direct the voting of, and shared power to dispose, or to direct the disposition of, the
18,889 Shares owned by Mr. Skoda and shared power to dispose, or to direct the disposition of the up to 777,778 Earn-out Shares
issuable to Live Earth Funding LLC upon satisfaction of the earn-out conditions due to Mr. Skoda’s trust’s membership
interest and position as co-managing member.
Mr. Skoda, as Trustee of the Gregory J. Skoda Trust, may be deemed
to have shared power to vote, or direct the voting of, and shared power to dispose, or to direct the disposition of, the 18,889
Shares owned by him, shared power to vote, or to direct the voting of, and shared power to dispose, or to direct the disposition
of, the 451,813 Shares held by the Trust, and shared power to vote, or to direct the voting of, and shared power to dispose, or
to direct the disposition of the up to 777,778 Earn-out Shares issuable to Live Earth Funding LLC upon satisfaction of the earn-out
conditions due to his trust’s membership interest and position as co-managing member.
(c) Effective
October 28, 2009, Mr. LoConti, Mr. Clark and the Trust entered into a privately-negotiated transaction with a third party group
pursuant to which (1) Mr. LoConti and the Trust purchased 681,002 Shares and 56,622 Shares, respectively, at a price of $4.00 per
share, and (2) Mr. LoConti, Mr. Clark and the Trust entered into an option agreement pursuant to which they each had the right
in their sole discretion to purchase additional Shares prior to December 25, 2009 at an exercise price of $4.25 per share (the
“Option”). Mr. LoConti had the Option to purchase up to 400,000 Shares (in whole or in part). Mr.
Clark and the Trust had the Option to purchase up to 347,014 Shares (in whole or in part) and in such amounts between each other
as they so agree; provided that the total number of Shares that can be exercised between the two of them could not exceed 347,014
Shares.
On October 29, 2009, Mr. LoConti acquired an aggregate of 41,000
Shares in open market transactions, at the following prices: (i) 10,000 Shares at $3.92, (ii) 10,000 Shares at $3.99, (iii) 15,900
Shares at $4.00, (iv) 5,000 Shares at $4.02, and (v) 100 Shares at $3.98.
On December 24, 2009, the parties agreed to extend the Option expiration
date to December 31, 2009. On December 30, 2009, Mr. LoConti exercised the Option with respect to 164,707 Shares for an aggregate
purchase price of $700,004.75 and transferred his remaining rights under the Option without consideration and Mr. Clark exercised
the Option with respect to 287,014 Shares for an aggregate purchase price of $1,219,809.50 and transferred his remaining rights
under the Option without consideration.
On December 31, 2009, in connection with the closing of the Acquisition,
the right to acquire the up to 777,778 Earn-out Shares was delivered to Live Earth Funding LLC pursuant to the Agreement in satisfaction
of approximately $6.8 million of indebtedness owed by Live Earth to Live Earth Funding LLC as of September 30, 2009.
On August 24, 2010, in connection with the WCA Parties’ receipt
of the Ohio Environmental Protection Agency approval of the transactions contemplated by the Agreement, Live Earth made a pro rata
distribution of 2,333,335 Shares to its members. As a result, (i) Tower 1 Partnership, LLC, of which the Joseph E. LoConti Trust
dated June 2, 2002, is the managing member received 416,000 Shares, (ii) Mr. Clark received 360,444 Shares, (iii) the Gregory J.
Skoda Trust, of which Mr. Skoda is the trustee, received 18,889 Shares and (iv) the Trust received 336,667 Shares.
On September 28, 2010, Mr. Clark received a restricted stock award
for 14,706 Shares under the Issuer's Fourth Amended and Restated 2004 Incentive Plan with respect to Mr. Clark’s service
on the Issuer’s board of directors. The 14,706 Shares vested in full on September 28, 2011.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the Issuer.
Ohio law requires that the ownership
of the landfill transferred as part of the acquisition be approved by the Ohio Environmental Protection Agency. Because the Ohio
approval was not received prior to the closing date, Ohio law requires that the Agreement expressly state that the transactions
contemplated by the Agreement are subject to the approval of the Director of the Ohio EPA and contain specific provisions negating
such sale in the event that the required Ohio approval is ultimately denied by the Director of the Ohio EPA. In that event, the
parties would be required to unwind the transaction, including returning the merger consideration, and, as a result, the
3,000,002
Shares retained by Live Earth at closing were not permitted to be transferred prior to the receipt of such approval
.
On July 6, 2010, the WCA Parties received the EPA approval.
On December 9, 2009, Mr. LoConti, Mr. Clark, Mr. Skoda and the Trust
entered into a Voting Agreement with the Issuer, pursuant to which each agreed to vote its Shares and not to revoke its consent
with respect to its membership interests in Live Earth in favor of the Acquisition.
On January 15, 2010, Mr. LoConti, Mr. Clark, the Gregory J. Skoda
Revocable Trust and the Trust (collectively, the “Stockholders”) entered into a Stockholders’ Agreement with
the Issuer.
The Stockholders’ Agreement provides that, unless approved
by a majority of the members of the Board of Directors of the Issuer, the Stockholders will not, subject to certain exclusions,
acquire more than 30% of any class of the Issuer’s voting securities (the “Maximum Ownership Limitation”) or
sell or transfer Shares representing more than 10% of the Shares in any single transaction or series of related transactions to
any person or entity. In addition, the Stockholders have agreed to vote their Shares at all meetings of the Issuer’s stockholders
and shall vote such Shares in a manner recommended by the majority of the members of the Issuer’s Board of Directors.
The obligations of the Stockholders under the Stockholders’
Agreement, other than the Maximum Ownership Limitation, terminate in the event that either Tom Fatjo, Jr., the Chief Executive
Officer of the Issuer, or Jerome M. Kruszka, the President of the Issuer, are no longer serving in such capacities, respectively.
In addition, the Stockholders’ Agreement will terminate on the earlier of (i) January 15, 2015 or (ii) the 180th day after
the date on which the Stockholders collectively own voting securities representing less than 5% of the outstanding voting power
represented by all of the Issuer’s voting securities then outstanding.
A copy of the Stockholders Agreement is filed as Exhibit 7.5 hereto
and is incorporated by reference into this Item 6.
As described under Item 4 above, the receipt of the Earn-out Shares
is subject to the conditions set forth in the Agreement, as amended by the Acquisition Agreement Amendment, and on December
19, 2011, the WCA Parties entered into the Operating Agreement providing for the day-to-day business operations of certain landfill
and rail transfer facilities currently owned and/or operated by certain WCA Parties and Live Earth Companies by Live Earth and
Live Earth Funding until the earlier to occur of the issuance of the Earn-out Shares or December 31, 2012.
Item 7. Materials to
be Filed as Exhibits.
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7.1*
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Option Agreement by and among Joseph E. LoConti, Daniel J. Clark and Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 and William P. & Heather H. Esping Children’s Trust, JBJ Lending Company, JEK Sep/Property, LP and Eminence Interests, LP
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7.2*
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Joint Filing Agreement
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7.3*
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Equity Interest and Asset Purchase Agreement dated December 9, 2009 by and among the Issuer, WCA of Massachusetts, LLC and WCA of Ohio, LLC on the one hand, and Live Earth, Champion City Recovery, LLC, Boxer Realty Redevelopment, LLC, Sunny Farms Landfill, LLC, and New Amsterdam & Seneca Railroad Company, LLC on the other hand (incorporated herein by reference to the Issuer’s Current Report on Form 8-K filed on December 15, 2009)
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7.4*
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Voting Agreement, dated December 9, 2009, by and among Joseph E. LoConti, Daniel J. Clark, Gregory J. Skoda and Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 and the Issuer
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7.5*
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Stockholders Agreement, dated January 15, 2010, by and among Joseph E. LoConti, Daniel J. Clark, Gregory J. Skoda and Patricia A. Skoda as Trustee of the Patricia A. Skoda Revocable Trust dated June 5, 2005 and the Issuer (incorporated herein by reference to the Issuer’s Current Report on Form 8-K filed on January 15, 2010)
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7.6
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Amendment No. 2, dated December 19, 2011, to Equity Interest and Asset Purchase Agreement dated December 9, 2009 by and among the Issuer, WCA of Massachusetts, LLC and WCA of Ohio, LLC on the one hand, and Live Earth, Champion City Recovery, LLC, Boxer Realty Redevelopment, LLC, Sunny Farms Landfill, LLC, and New Amsterdam & Seneca Railroad Company, LLC on the other hand (incorporated herein by reference to the Issuer’s Current Report on Form 8-K filed on December 22, 2011)
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7.7
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Management Operating Agreement dated December 19, 2011 by and among the Issuer, WCA of Massachusetts, LLC and WCA of Ohio, LLC, Champion City Recovery, LLC, Boxer Realty Redevelopment, LLC, Sunny Farms Landfill, LLC, and New Amsterdam & Seneca Railroad Company, LLC on the one hand and Live Earth and Live Earth Funding LLC on the other hand (incorporated herein by reference to the Issuer’s Current Report on Form 8-K filed on December 22, 2011)
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* Previously filed.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete and correct.
Date: January 6, 2012
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/s/Joseph E. LoConti
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Joseph E. LoConti
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/s/Daniel J. Clark
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Daniel J. Clark
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/s/Gregory J. Skoda
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Gregory J. Skoda
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/s/Patricia A. Skoda
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Patricia A. Skoda as Trustee of the
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Patricia A. Skoda Revocable Trust
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dated June 5, 2005
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