Registration No. 33-85018
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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USA WASTE SERVICES, INC.
(Exact name of registrant as specified in its charter)
OKLAHOMA 73-1309529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5000 Quorum Drive, Suite 300
Dallas, Texas 75240
(214) 233-4212
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Earl E. DeFrates
USA Waste Services, Inc.
5000 Quorum Drive, Suite 300
Dallas, Texas 75240
(214) 233-4212
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
John T. Unger
Snell & Smith, P.C.
1000 Louisiana, Suite 3650
Houston, Texas 77002
Approximate date of commencement of proposed sale to the public:
November 15, 1994.
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/
The Prospectus contained in this Registration Statement also
relates to 2,418,967 shares of Common Stock covered by the
Registrant's Registration Statement on Form S-3 (Registration No.
33-42988) and 440,000 shares of Common Stock covered by the
Registrant's Registration Statement on Form S-3 (Registration No.
33-76226) and is intended as the common prospectus to which
reference is made in Rule 429 under the Securities Act of 1933, as
amended.
PROSPECTUS
4,292,967 Shares
USA WASTE SERVICES, INC.
Common Stock
This Prospectus relates to 4,292,967 shares (the "Shares") of the
Common Stock, $.01 par value ("Common Stock"), of USA Waste
Services, Inc., an Oklahoma corporation (the "Company") offered
for the account of the selling shareholders (the "Selling
Shareholders") and their transferees if they wish to sell any of
he Shares in transactions in which they and any broker-dealer
through whom the Shares are sold may be deemed underwriters within
the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), to enable a Selling Shareholder to pledge the
Shares as collateral for loans made to the Selling Shareholder,
and to enable the Selling Shareholder or a pledgee to publicly
sell all or a portion of the Shares in order to pay the principal or
interest on such loans or in the event of a margin call or
default in connection with such loans. See "Selling Shareholders."
the Company will not receive any proceeds from the sale of the
Shares sold by the Selling Shareholders.
The Shares offered hereby relate to Common Stock issued by the
Company in connection with its acquisition by merger of
Countryside Landfill, Inc., an Illinois corporation
("Countryside"), Soil Remediation of Philadelphia, Inc., a
Delaware corporation ("SRP"), and Cactus Disposal, Inc., an Arizona
corporation ("Cactus"), and its acquisition of certain of the
assets of Watts Texas Limited Partnership, a Texas limited
partnership ("Watts"). The Selling Shareholders are Watts, former
shareholders of Countryside, SRP, and Cactus, and The First
Southwest Company, a Texas corporation ("First Southwest"), and
certain of its directors and officers, who received shares in
connection with such acquisitions. In connection with the
Company's issuance of the Shares, the Company agreed to register
resales of such shares and to bear all expenses (other than
brokerage fees, underwriting discounts and selling commissions,
and fees and expenses of counsel and other advisers to the Selling
Shareholders) in connection with the registration of the Shares.
The Company anticipates that any sales by the Selling Shareholders
and their transferees will be effected from time to time on the
open market in ordinary brokerage transactions on the New York
Stock Exchange (the "NYSE"), on which the Common Stock is listed,
n the over-the-counter market, or in private transactions, at
market prices prevailing at the time of sale or at negotiated
prices. The Shares will be offered for sale on terms to be
determined when the agreement to sell is made or at the time of
sale, as the case may be. The Shares may be offered directly,
through agents designated from time to time, or through brokers or
dealers. A member firm of the NYSE may be engaged to act as a
Selling Shareholder's agent in the sale of the Shares by such
Selling Shareholders. The commission paid to the member firm will
be the normal stock exchange commission (including negotiated
commissions to the extent permissible). Sales of Shares by the
member firm may be made on the NYSE from time to time at prices
related to prices then prevailing. Any such sales may be block
trades. Any commissions allowed to any broker-dealer, and if any
broker-dealer purchases any of the Shares as principal, any
profits received on the resale of such Shares may be deemed
underwriting discounts and commissions under the Securities Act.
See "Manner of Offering."
The Shares of Common Stock offered hereby have been listed on the
NYSE. On May , 1995, the last sale price of the Common Stock on
the NYSE was $ . per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May , 1995
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TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain Information by Reference 2
The Company 4
Recent Events 5
Use of Proceeds 5
Description of Capital Stock 6
Selling Shareholders 8
Manner of Offering 9
Legal Matters 11
Experts 12
Index to Financial Statements 12
[CAPTION]
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and
in accordance therewith files reports, proxy statements, and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy and information statements,
and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the
Commission at Judiciary Plaza Building, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and at the regional offices of
the Commission located at 7 World Trade Center, Suite 1300, New
York, New York 10048 and 500 West Madison, Suite 1400, Chicago,
Illinois 60621-2511. Copies of such material may be obtained from
the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed
rates. In addition, the Company's securities are listed on the New
York Stock Exchange and reports, proxy and information statements,
and other information concerning the Company described above may
be inspected at the offices of such Exchange at 20 Broad Street,
New York, New York 10005.
This Prospectus constitutes part of a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "1933 Act").
This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the
Registration Statement for further information with respect to the
Company and the Common Stock offered hereby. Any statements
contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed
with the Commission are not necessarily complete, and in each
instance reference is made to the copy of such document as filed.
Each such statement is qualified in its entirety by such
reference. The Registration Statement, including exhibits and
schedules thereto, may be inspected without charge at the offices
of the Commission, and copies of such materials may be obtained
therefrom at prescribed rates.
[CAPTION]
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission
under the 1934 Act are incorporated by reference in this
prospectus: (i) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, as amended by the Company's
Annual Report on Form 10-K/A (the "Annual Report"), (ii) the
Company's Joint Proxy Statement and Prospectus for its 1995 Annual
Meeting of Shareholders dated May , 1995, including the
USA Waste and Chambers Combined Historical Unaudited Pro Forma
Condensed Financial Statements and the Consolidated Financial
Statements of Chambers Development Company, Inc., for the years
3
ended December 31, 1994 and 1993 contained therein, and (iii) the
Current Report on Form 8-K dated February 28, 1994, as filed by
Envirofil, Inc., a wholly owned subsidiary of USA Waste, as
amended by Form 8-K/A dated May 11, 1994, including the combined
financial statements of the Acquired New Jersey Solid Waste
Companies as of December 31, 1992 and 1993 and for each of the
three years in the period ended December 31, 1993.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the 1934 Act subsequent to the date of
filing of the Company's Annual Report on Form 10-K referred to
above and prior to the termination of the offering described herein
shall be deemed to be incorporated by reference and to be a part
of this Prospectus from the date of filing of such documents. All
information appearing in this prospectus is qualified in its
entirety by the information and financial statements (including
the notes thereto) appearing in the documents incorporated by
reference.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained in this
Prospectus, or in any other subsequently filed document which is
also incorporated by reference, modifies or replaces such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on written or oral request of such
person, a copy (without exhibits) of any and all information
incorporated by reference in this Prospectus. Requests for such
copies should be directed to Earl E. DeFrates, Executive Vice
President, USA Waste Services, Inc., (i) if by telephone to (214)
233-4212 and (ii) if by mail to 5000 Quorum Drive, Suite 300,
Dallas, Texas 75240.
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[CAPTION]
THE COMPANY
The Company is an integrated solid waste management company
operating in the non-hazardous solid waste management segment of
the industry. The Company operates primarily in the collection,
transfer and recycling, disposal, and soil remediation portions of
the industry. The Company provides solid waste management services
to the full spectrum of municipal, commercial, industrial, and
residential customers with operations in California, Illinois,
Indiana, Missouri, New Jersey, North Dakota, Ohio, Oklahoma,
Pennsylvania, Texas, washington, and West Virginia. Based on 1994
revenues, the Company is currently the sixth largest publicly traded
non-hazardous waste management company in the United States.
The Company currently owns or operates 10 solid waste landfills.
These landfills are located in Illinois (2), Washington, Indiana
(2), Oklahoma, Texas, Missouri, West Virginia, and North Dakota.
he Company conducts collection operations that serve metropolitan
markets in the vicinity of six of its landfills in Illinois (Lake
and McDonough County), Washington, Texas, Oklahoma and Indiana
(White County), as well as collection operations (including
materials recycling and transfer operations in certain markets)
serving metropolitan markets in Houston, Fort Worth, and San
Antonio, Texas; Chicago, Illinois; central New Jersey; and
Sacramento and Stockton, California. The Company also operates a
recycled materials brokerage business based in Columbus, Ohio and
two soil remediation facilities located in the Philadelphia,
Pennsylvania area.
The Company's strategy is capitalize on the trend of consolidation
in the non-hazardous solid waste industry in several ways. One of
the key elements of the Company's strategy involves expansion of
its integrated solid waste management services in selected markets
through the acquisition of additional solid waste collection
operations, landfills, transfer stations, and other related
businesses that can be effectively integrated with each other and
with the Company's existing operations to provide an overall
improvement of operating results. In addition, acquisitions in new
geographic areas will be pursued where opportunities exist to
strengthen the Company's competitive position or, where
opportunities exist, to apply the Company's operating
and management expertise to enhance the performance of acquired
operations and better utilize an existing base of assets. The
Company also intends to expand its operations in the areas that it
serves through the development of landfills, collection
operations, and transfer station operations, and the development
of or participation in recycling and composting services where
appropriate. The Company concentrates on serving the local
wasteshed in each of its markets by providing an array of
non-hazardous solid waste services to the communities that it
serves. In connection with its acquisition program, the Company
seeks to improve operating efficiencies through the integration of
local collection and transfer operations with landfills; the
reorganization of collection operations; consolidation of routes
and improved utilization of operating equipment; restructuring of
landfill management and administrative systems; consolidation of
operating and marketing activities; and increased utilization of
operating equipment. The Company anticipates that added service
requirements, increased regulation, heightened public concern over
the environment, and continued refinement of available disposal
sites will cause continued industry consolidation and increased
privatization of municipal services, affording the Company
attractive future opportunities for growth.
Since August 1990, the Company has acquired nine landfills, 17
collection operations, two transfer stations, a recycled materials
brokerage business, and two soil remediation facilities and
assumed operation of one municipal landfill.
Additional information concerning the Company's business, assets,
management, results of operations, and other matters is included
in the Company's reports filed under the 1934 Act that are
incorporated by reference in this Prospectus, including the
Company's Annual Report on Form 10-K for the year ended December
31, 1994, and the Joint Proxy Statement and Prospectus dated May
, 1995. See "Incorporation of Certain Information by Reference."
The term "Company" and "USA Waste" refer to USA Waste Services
Inc., an Oklahoma corporation, and its subsidiaries and
predecessors unless the context requires otherwise. The Company's
executive offices are located at 5000 Quorum Drive, Suite 300,
Dallas, Texas 75240, and its telephone number is (214) 233-4212.
5
[CAPTION]
RECENT EVENTS
The Company has entered into an Amended and Restated Agreement and
Plan of Merger dated November 28, 1994, with Chambers Development
Company, Inc., a Delaware corporation ("Chambers"), pursuant to
which a wholly owned subsidiary of the Company will be merged (the
"Merger") with and into Chambers and Chambers will become a wholly
owned subsidiary of the Company. Pursuant to the Merger, each
share of common stock, $.50 par value, and Class A common stock,
$.50 par value, of Chambers will be converted into .41667 of a
shares of Common Stock of the Company. The Company estimates that
it will issue approximately 27.8 million shares of Common Stock in
connection with the Merger. Closing of the Merger is subject to,
among other things, the absence of any material change in the
business or assets of the Company or Chambers, the receipt of
fairness opinions by the boards of directors of the Company and
Chambers, the vote of the stockholders of the Company and
Chambers, registration of he shares of Common Stock of the Company
to be issued in connection with the Merger under the Securities
Act, listing of such shares on the New York Stock Exchange, the
obtaining of all necessary third party consents, and the final
settlement of certain litigation affecting Chambers. Although
there is no assurance that the Merger will receive the favorable
vote of a majority of the Common Stock, the Boards of Directors of
the Company and Chambers have unanimously approved the Merger and
intend to recommend its approval at the respective stockholders
meetings of the Company and Chambers. The Company expects the
Merger to be completed in June 1995.
Chambers provides integrated solid waste services in the United
States, with properties and operations at the end of 1994 in
selected areas of Florida, Georgia, Illinois, Maryland,
Mississippi, New Jersey, North Carolina, Ohio, Pennsylvania, South
Carolina, Tennessee, Virginia, and West Virginia. Major elements
of Chambers' business include the operation, management,
construction, and engineering of solid waste landfills, transfer
stations. recycling facilities, and related operations. Chambers
also provides the services of collecting, hauling, and recycling
solid waste for municipal. commercial, industrial, and residential
customers. Chambers presently owns or operates 14 sanitary
landfills, one construction and demolition debris landfill, and
one medical, special, and municipal waste incinerator. Chambers
landfills provide long-term disposal capacity for a majority of
its collection and hauling operations.
Based on revenues, Chambers is the fifth largest publicly traded
non-hazardous solid waste management company in the United States.
For the years ended December 31, 1994, 1993, and 1992,
respectively, Chambers had revenues of $257,989,000, $28
8,481,000, and $294,310,000, and net income (loss) of
$(90,244,000), $8,303,000, and $(70,723,000), respectively. Upon
consummation of the Merger, the Company will become the third largest
publicly traded non-hazardous solid waste management company in the
United States based on 1994 revenues.
Reference should be made to "USA Waste Services, Inc. and Chambers
Development Company, Inc. Combined Historical Unaudited Pro Forma
Condensed Financial Statements" included in the Company's Joint
Proxy Statement and Prospectus dated May , 1995, filed under the
1934 Act and incorporated by reference in this Prospectus for pro
forma financial information giving effect to the Merger. See
"Incorporation of Certain Information by Reference."
In connection with the acquisition of Chambers the Company also
intends to propose to its shareholders that the Company's domicile
be changed from Oklahoma to Delaware.
6
[CAPTION]
RISK FACTORS
In addition to the other information set forth in this Prospectus,
the following factors should be considered by prospective
investors when evaluating an investment in the Common Stock of the
Company.
Reliance on Future Acquisitions for Growth
The Company's strategy envisions that a significant portion of its future
growth will come from businesses yet to be acquired or the development of
landfill projects. There can be no assurance that the Company will
be able to successfully identify suitable acquisition candidates,
successfully negotiate the acquisition of such businesses, or
obtain any necessary financing. Additionally, there is no
assurance that any such financing will not result in increased
leverage or dilution to existing shareholders.
The Company's current strategy includes the acquisition and
development of additional landfills, transfer stations, collection
and recycling operations as well as the expansion of capacity at
its existing landfills. The trend toward consolidation in the
solid waste industry has increased competition for the acquisition
of landfills, transfer stations, and collection operations and a
number of the Company's competitors for such acquisitions have
significantly greater financial resources than the Company. In
some areas of the country there is a shortage of permitted
disposal capacity and existing landfill operations may become too
expensive to justify their purchase or become unavailable for
purchase by the Company. In addition, land scarcity, local citizen
opposition, and stricter regulation have made it increasingly
difficult to obtain permits to expand existing landfills or to
develop new landfills or transfer stations. Thus, there can be no
assurance that the Company can successfully pursue its strategy
and failure to do so may limit the Company's growth potential.
Operations Could Be Adversely Affected by Government Regulation
and Potential Litigation
The Company's operations are subject to, and substantially affected
by, extensive federal, state, and local laws, regulations, orders,
and permits that govern environmental protection, health and
safety, zoning, and other matters. These regulations may impose
restrictions on the Company's operations that could limit or
reduce the Company's revenues and earnings, such as limiting the
expansion of disposal facilities, limiting or banning the disposal
of out-of-state waste or certain categories of waste, or mandating
the disposal of local refuse. Because of heightened public concern,
companies in the waste management services business, including the
Company, in the normal course of business may become subject to
judicial and administrative proceedings involving federal, state,
or local agencies. These governmental agencies may seek to impose
fines on the Company or to revoke or deny renewal of the Company's
operating permits or licenses for violations of environmental laws
or regulations or to require the Company to remediate
environmental problems relating to waste disposed of by the
Company or its predecessors, or resulting from its or its
predecessor's transportation and collection operations, all of
which could have a material adverse effect on the Company. Since
these extensive regulations are continually evolving, the Company
may from time to time be required to make significant capital and
operating expenditures in response to regulatory changes. In some
situations, the Company may be unable to recoup these expenditures
from its customers in the form of price increases. The Company may
also become subject to actions brought by individuals or community
groups in connection with the permitting or licensing of its
operations, any alleged violations of such permits and licenses,
or other matters.
Due to the nature of the Company's business and the industry in
which it operates, the Company could from time to time receive
unfavorable publicity, which could adversely affect the market
price of the Common Stock.
Potential Liability for Environmental Damage
The Company is subject to liability for any environmental damage
its landfills, transfer stations, and collection operations may
cause to adjacent landowners and other persons, particularly as a
result of the contamination of drinking water sources or the soil,
including damage resulting from conditions existing prior to the
acquisition of such operations by the Company. The Company may
also be subject to liability for any environmental contamination
caused by pollutants or hazardous substances whose transportation,
treatment, or disposal was arranged for by the Company or its
predecessors. If the Company were to incur a substantial liability for
environmental damage, its financial condition could be materially
adversely affected.
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The Company currently maintains a limited amount of environmental
impairment liability (EIL) insurance on certain of its landfills
and transfer stations that provides coverage against clean-up
costs, bodily injury of non-employees, and property damage caused
by off-site pollution emanating from the Company's landfills or
transfer stations. However, there can be no assurance that such
environmental impairment liability insurance will be adequate to
cover any or all potential liabilities or will be available in the
future or that the premium required will make continued retention
of such coverage economically feasible. If in the absence of such
insurance the Company were to incur liability for environmental
damage or the amount of available insurance proved insufficient,
the Company's financial condition could be materially adversely
affected.
Highly Competitive Industry
The waste management industry is highly competitive and requires
substantial capital resources. The industry comprises two large
national waste management companies as well as numerous local and
regional companies of varying sizes and financial resources. The
largest national waste management companies have significantly
greater financial resources than the Company and may be better
positioned to take advantage of potential acquisition targets on
which the Company's future growth is substantially dependent. In
addition, many municipalities operate collection and disposal
operations. Competition may also be affected by the increasing
national emphasis on recycling, composting, incineration, and
other waste reduction programs that could reduce the volume of
refuse and garbage collected or deposited in landfills.
The Company provides residential collection services under a number of
municipal contracts. As is the case in the industry, such
contracts come up for competitive bidding periodically and there
is no assurance that the Company will be the successful bidder and
will be able to retain such contracts. If the Company is unable to
replace any contract lost through the competitive bidding process
with a comparable contract within a reasonable time period or to
use any surplus equipment in other service areas, the earnings of
the Company could be adversely affected. As the Company continues
to grow, the loss of any one contract will have less of an impact
on the Company's operations as a whole.
Shares Eligible for Future Sale Could Affect Market Price
Future sales of substantial amounts of Common Stock in the public
market following the offering made hereby could adversely affect
the prevailing market price of the Common Stock. The Company has
issued and has outstanding a substantial number of shares of
Common Stock that are not registered with the Commission. However,
such unregistered shares may be sold in compliance with Rule 144
under the Securities Act. At March 1, 1995, the Company has
reserved for future issuance 1,504,628 shares of Common Stock
issuable under its 1990 Stock Option Plan and 1993 Stock Incentive
Plan and the Envirofil Employee's 1993 Stock Option Plan. The
shares issuable upon exercise of these options have been
registered under the Securities Act and will be freely tradeable
following their issuance. At March 31, 1995, the Company also had
outstanding warrants to purchase an aggregate of 2,635,468 shares
of Common Stock. In addition, the Company has issued $49,000,000
in aggregate principal amount of its 8-1/2% Convertible
Subordinated Debentures Due 2002, which are convertible into
Common Stock, unless previously redeemed, at a price of $13.25 per
share, subject to adjustment in certain events. The shares
issuable upon conversion of such debentures have been registered
under the Securities Act and will be freely tradeable following
their issuance.
[CAPTION]
USE OF PROCEEDS
This Prospectus relates to an aggregate of 4,292,967 shares of
Common Stock that are being offered for the account of the Selling
Shareholders. All proceeds from the sale of such shares will go
to the Selling Shareholders.
8
[CAPTION]
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 50,000,000 shares of Common
Stock, par value $0.01 per share, of which 22,678,822 shares were
outstanding at March 31, 1995. The Company is also authorized to issue
10,000,000 shares of Preferred Stock, $.01 par value (the
``Preferred Stock''), none of which were outstanding as of
September 30, 1994. The Company has reserved for future issuance,
3,698,113 shares issuable upon conversion of the 8-1/2%
Convertible Subordinated Debentures Due 2002, 2,635,468 shares
upon exercise of outstanding warrants, and 1,504,628 shares
issuable under the 1990 Stock Option Plan and 1993 Stock Incentive
Plan and the Envirofil Employees' 1993 Stock Option Plan.
Common Stock
Each holder of Common Stock is entitled to one vote per share held
of record on each matter submitted to shareholders. Cumulative
voting for the election of directors is not permitted, and the
holders of a majority of shares voting for the election of
directors can elect all members of the Board of Directors.
Subject to the rights of any holders of Preferred Stock, holders of
record of shares of Common Stock are entitled to receive ratably
dividends when and if declared by the Board of Directors out of
funds of the Company legally available therefor. In the event of
a voluntary or involuntary winding up or dissolution, liquidation,
or partial liquidation of the Company, holders of Common Stock are
entitled to participate ratably in any distribution of the assets
of the Company, subject to any prior rights of holders of any
outstanding Preferred Stock.
Holders of Common Stock have no conversion, redemption, or
preemptive rights. All outstanding shares of Common Stock are, and
the Shares offered hereby will be, upon issuance and sale, validly
issued, fully paid, and nonassessable.
Preferred Stock
The Board of Directors is authorized, without further approval of
the shareholders, to issue the Preferred Stock in series and with
respect to each series, to fix its designations, relative rights
(including voting, dividend, conversion, sinking fund, and
redemption rights), preferences (including with respect to
dividends and upon liquidation), privileges, and limitations. The
Board of Directors of the Company, without shareholder approval,
may issue Preferred Stock with voting and conversion rights, both
of which could adversely affect the voting power of the holders of
Common Stock, and dividend or liquidation preferences that would
restrict Common Stock dividends or adversely affect the assets
available for distribution to holders of shares of Common Stock
upon the Company's dissolution.
Authorized But Unissued Shares
Authorized but unissued shares of Common Stock or Preferred Stock
can be reserved for issuance by the Board of Directors from time
to time without further shareholder action for proper corporate
purposes, including stock dividends or stock splits, raising
equity capital, and structuring future corporate transactions,
including acquisitions.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is The First
National Bank of Boston, Boston, Massachusetts.
Limited Liability and Indemnification of Officers and Directors
The Certificate of Incorporation of the Company provides that the
directors of the Company shall not be liable to the Company or its
9
shareholders for monetary damages for breach of fiduciary duty as
a director to the fullest extent permitted by the Oklahoma Act. The
foregoing limitation does not eliminate or limit the liability of
a director for any breach of a director's duty of loyalty to the
Company or its shareholders, for acts or omissions not in good
faith or which involved intentional misconduct or a knowing
violation of law, for any transaction from which the director
derived an improper personal benefit, or for approval of the
unlawful payment of a dividend or an unlawful stock purchase or
redemption. The Certificate of Incorporation of the Company also
provides that the Company shall indemnify, and advance litigation
expenses to, its officers, directors, employees, and agents to the
fullest extent permitted by the Oklahoma Act and all other laws of
the State of Oklahoma.
The Oklahoma Act provides that the Company has the power to
indemnify any person who is sued or threatened to be made a named
party in a proceeding, other than an action by or in the right of
the Company, because such person is or was a director, officer,
employee, or agent of the Company or is or was serving at the
request of the Company as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses actually and reasonably
incurred by him in connection with such proceeding. In order to be
indemnified, the person must have (1) acted in good faith; (2)
acted in a manner he reasonably believed to be in or not opposed
to the best interests of the Company, and (3) with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The indemnification includes attorneys'
fees, judgments, fines, and amounts paid in settlement.
The Oklahoma Act also provides that the Company may indemnify any
person who is sued or threatened to be made a named party in a
proceeding by or in the right of the Company to procure a judgment
in its favor because such person is or was a director, officer,
employee, or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or
other enterprise. In order to be indemnified, the person must have
conducted himself in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company. No indemnification may be made, however, with respect to
any claim, issue, or matter as to which such person shall have
been judged to be liable to the Company unless and only to the
extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for
such expenses which the court shall deem proper.
Indemnification by the Company is subject to a determination that
the director, officer, employee, or agent has met the applicable
standard of conduct. The determination must be made (1) by
a majority vote of a quorum of the Board of Directors, consisting
only of directors who were not parties to such action, suit or
proceeding; (2) if such a quorum cannot be obtained, or even if
obtainable, if a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (3) by the
shareholders of the Company.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or person
controlling the Company pursuant to the foregoing provisions, the
Company has been informed 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.
Shares Eligible for Future Sale
Future sales of substantial amounts of Common Stock in the public
market following the offering made hereby could adversely affect
the prevailing market price of the Common Stock. The Company has
issued and has outstanding a substantial number of shares of
Common Stock that are not registered with the Commission. However,
such unregistered shares may be sold in compliance with Rule 144
under the Securities Act. At December 31, 1994, the Company also
has outstanding under its 1990 Stock Option Plan and 1993 Stock
Incentive Plan and the Envirofil Employee's 1993 Stock Option Plan
options to purchase 1,504,628 shares of Common Stock and in the
future may issue additional options. The shares issuable upon
exercise of these options have been registered under the
Securities Act and will be freely tradeable following their
issuance. At March 31, 1995, the Company also had outstanding
warrants to purchase an aggregate of 2,635,468 shares of Common
Stock. In addition, the Company has issued $49,000,000 in
aggregate principal amount of its 8-1/2% Convertible Subordinated
Debentures Due 2002, which are convertible into Common Stock,
10
unless previously redeemed, at a price of $13.25 per share,
subject to adjustment in certain events. The shares issuable upon
conversion of such debentures have been registered under the
Securities Act and will be freely tradeable following their
issuance.
[CAPTION]
SELLING SHAREHOLDERS
This Prospectus covers offers from time to time by the Selling
Shareholders of the Shares owned by them. The following table sets
forth the names of the Selling Shareholders and the number of
shares of Common Stock held be each as of the date of this
Prospectus that are registered hereunder:
Name Number of Shares
Robert F. Smith 2,418,967
Watts Texas Limited Partnership 1,114,000
Louis D. Paolino, Jr. 600,000
Donald F. Moorehead, Jr. 100,000
Shelley Moorehead 100,000
Harold Rubenstein 40,000
The First Southwest Company 8,000
T. Benjamin Jennings 6,000
Scott D. Cook 6,000
[FN]
Mr. Smith was a director and Vice Chairman of the Board of
Directors of the Company from July 1, 1992, to May 27, 1994, and
Vice President from July 1, 1992, to , 1994.
Mr. Moorehead is Chairman of the Board and Chief Development
Officer of the Company.
Shares acquired from Mr. Paolino
Ms. Moorehead is Mr. Moorehead's spouse
Directors of The First Southwest Company
Mr. Smith beneficially owns 2,845,107 shares of Common Stock of the
Company (including warrants and options currently exercisable or
exercisable within 60 days), which represents approximately 12.4%
of the outstanding Common Stock of the Company as of May 1, 1995.
Mr. Moorehead beneficially owns 2,129,027 shares of Common Stock
of the Company (including warrants and options currently
exercisable or exercisable within 60 days), which represents
approximately 9.2% of the outstanding Common Stock of the Company
at May 1, 1995. Mr. Rubenstein beneficially owns a total of 123,516
shares of Common Stock of the Company.
The 2,418,967 Shares held by Mr. Smith have been registered to
permit him to establish margin accounts with respect to such
Shares or to otherwise pledge the Shares as collateral for loans
made to him. Mr. Smith's current intention is, if necessary to
repay a loan or in the event of a margin call or default in
connection with a loan, to sell such portion of the Shares as may
be necessary to repay the principal of, interest on, or other
costs or charges with respect to, such loan or to satisfy such
margin call.
The 1,114,000 shares of Common Stock owned by Watts (the "Watts
Shares") are being registered to permit Watts, (i) prior to
September 5, 1995, to establish margin accounts with respect to
such Shares or to otherwise pledge the Watts Shares as collateral
for loans made to Watts. Watts current intention is, if necessary
to repay a loan or in the event of a margin call or default in
connection with a loan, to sell such portion of the Watts Shares
as may be necessary to repay the principal of, interest on, or
other costs or charges with respect to, such loan or to satisfy
such margin call, (ii) subsequent to March 5, 1995 and prior to
September 9, 1995, to sell or otherwise dispose of up to 507,000
of the Watts Shares, and (iii) subsequent to September 5, 1995, to
sell or otherwise dispose of any or all of the Watts Shares. See
"Manner of Offering - Registration Rights Agreements."
11
[CAPTION]
MANNER OF OFFERING
This Prospectus, as appropriately amended or supplemented, may be
used from time to time by a Selling Shareholder, or his
transferees, to offer and sell the Shares in transactions in which
he and any broker-dealer through whom any of the Shares are sold
may be deemed to be underwriters within the meaning of the Securities Act.
The Company will receive none of the proceeds from
any such sales. There presently are no arrangements or
understandings, formal or informal, pertaining to the distribution
of the Shares.
The Company anticipates that resales of the Shares by the Selling
Shareholders will be effected from time to time on the open market
in ordinary brokerage transactions on the New York Stock Exchange
("NYSE"), on which the Common Stock is listed, in the
over-the-counter market, or in private transactions (which may
involve crosses and block transactions). The Shares will be
offered for sale at market prices prevailing at the time of sale
or at negotiated prices and on terms to be determined when the
agreement to sell is made or at the time of sale, as the case may
be. The Shares may be offered directly, through agents designated
from time to time, or through brokers or dealers. A member firm
of the NYSE may be engaged to act as a Selling Shareholder's agent
in the sale of the Shares by a Selling Shareholder and/or may
acquire Shares as principal. Member firms participating in such
transactions as agent may receive commissions from the Selling
Shareholder (and, if they act as agent for the purchaser of such
Shares, from such purchaser), such commissions computed in
appropriate cases in accordance with the applicable rules of the
NYSE, which commissions may be at negotiated rates where
permissible. Sales of Shares by the member firm may be made on
the NYSE from time to time at prices related to prices then
prevailing. Any such sales may be by block trade.
Participating broker-dealers may agree with a Selling Shareholder
to sell a specified number of shares at a stipulated price per
share and, to the extent such broker-dealer is unable to do so
acting as agent for the Selling Shareholder to purchase as
principal any unsold shares at the price required to fulfill the
broker-dealer's commitment to the Selling Shareholder. In addition
or alternatively, shares may be sold by a Selling Shareholder,
and/or by or through other broker-dealers in special offerings,
exchange distributions, or secondary distributions pursuant to and
in compliance with the governing rules of the NYSE, and in
connection therewith commissions in excess of the customary
commission prescribed by the rules of such securities exchange may
be paid to participating broker-dealers, or, in the case of
certain secondary distributions, a discount or concession from the
offering price may be allowed to participating broker-dealers in
excess of such customary commission. Broker-dealers who acquire
shares as principal may thereafter resell such Shares from time to
time in transactions (which may involve cross and block
transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described in
the preceding two sentences) on the NYSE, in negotiated
transactions, or otherwise, at market prices prevailing at the
time of sale or at negotiated prices, and in connection with such
resales may pay to or receive commissions from the purchasers of
such shares.
Upon the Company's being notified by a Selling Shareholder that a
particular offer to sell the Shares is made, a material
arrangement has been entered into with a broker-dealer for the sale
of shares through a block trade, special offering, exchange
distribution, or secondary distribution, or any block trade has
taken place, to the extent required, a supplement to this
Prospectus will be delivered together with this Prospectus and
filed pursuant to Rule 424(b) under the Securities Act setting
forth with respect to such offer or trade the terms of the offer
or trade; including (i) the number of Shares involved, (ii) the
price at which the Shares were sold, (iii) any participating
brokers, dealers, agents or member firm involved, (iv) any
discounts, commissions and other items paid as compensation from,
and the resulting net proceeds to, the Selling Shareholder, (v)
that such broker-dealers did not conduct any investigation to
verify the information set out in this Prospectus, and (vi) other
facts material to the transaction.
Shares may be sold directly by a Selling Shareholder or through
agents designated by a Selling Shareholder from time to time.
Unless otherwise indicated in the a supplement to this Prospectus,
any such agent will be acting on a best efforts basis for the
period of its appointment.
12
The Selling Shareholders and any brokers, dealers, agents, member
firm or others that participate with the Selling Shareholders in
the distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commissions or
fees received by such persons and any profit on the resale of the
Shares purchased by such person may be deemed to be underwriting
commissions or discounts under the Securities Act.
The Company may agree to indemnify the Selling Shareholders as
underwriters under the Securities Act against certain liabilities,
including liabilities arising under the Securities Act. Agents may
be entitled under agreements entered into with the Selling
Shareholders to indemnification against certain civil liabilities,
including liabilities under the Securities Act.
The Selling Shareholders will be subject to the applicable
provisions of the 1934 Act and the rules and regulations
thereunder, including without limitation Rules 10b-2, 10b-6, and
10b-7, which provisions may limit the timing of purchases and
sales of any of the Common Stock by the Selling Shareholders. All
of the foregoing may affect the marketability of the Common Stock.
The Company will pay substantially all the expenses incident to
this offering of the Common Stock by the Selling Shareholders to
the public other than brokerage fees, commissions and discounts of
underwriters, dealers or agents.
In order to comply with certain states' securities laws, if
applicable, the Common Stock will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In
addition, in certain states the Common Stock may not be sold
unless the Common Stock has been registered or qualified for sale
in such state or an exemption from registration or qualification
is available and is complied with.
Countryside Merger Agreement
In connection with acquisition of Mark VI Enterprises, Inc. (the
parent of Countryside Landfill, Inc.) (``Mark VI''), the Company,
USA Waste of Illinois, Inc., Mr. Smith and Mark VI entered into an
Agreement of Merger (the ``Countryside Merger Agreement'')
pursuant to which Mr. Smith received 4,500,000 shares of Common
Stock. Pursuant to the Countryside Merger Agreement, the Company
agreed to file a registration statement with the Commission to
effect the registration under the Securities Act of the shares of
the Company's Common Stock received by Mr. Smith as a result of
the merger and to use its best efforts to maintain such
registration for a period of two years from the effective date of
the registration statement. The Company filed a Registration
Statement on Form S-3 to permit Mr. Smith to pledge his shares of
Common Stock to secure loans or margin accounts that was declared
effective on October 31, 1991. Mr. Smith has disposed of 2,081,033
shares of Common Stock pursuant to such registration statement.
Pursuant to the Countryside Merger Agreement, all expenses incident
to registration and qualification of the Shares, including legal,
accounting, and printing fees, will be borne by the Company.
The Countryside Merger Agreement contains an indemnification
provision between the Company and Mr. Smith indemnifying Mr. Smith
against losses, claims, damages and liabilities to which Mr. Smith
may become subject under the Securities Act or state law caused by
any untrue statement or alleged untrue statement of any material
fact contained in this Prospectus, the Registration Statement of
which this Prospectus is a part or any amendment or supplement
thereof, or any omission or alleged omission to state herein or
therein a material fact required to be stated or necessary to make
the statements herein or therein not misleading. The indemnity
from the Company also covers amounts incurred in connection with
investigating or defending against any such claim. The indemnity
from the Company does not cover untrue statements and omissions
made in reliance upon and in conformity with written information
furnished to the Company by Mr. Smith expressly for use in this
Prospectus, the Registration Statement of which this Prospectus
is a part or any amendment or supplement thereto.
13
SRP Merger Agreement
In connection with the acquisition of SRP in September 1993, the
Company, USA Acquisition Co., SRP, and Mr. Paolino entered into
an Agreement of Merger dated September 29, 1993 (the "SRP Merger
Agreement"), pursuant to which Mr. Paolino's Shares were
originally issued. In the SRP Merger Agreement, the Company
agreed to use its best efforts to register the Mr. Paolino's
Shares under the Securities Act and applicable state securities
laws and to maintain such registration for a period of three years
from the effective date of the registration statement, or such
other period that terminates on the earlier of: (i) a date
specified by Mr. Paolino or (ii) the date all shares covered by
the registration statement have been sold or withdrawn. The
Registration Statement of which this Prospectus is a part was
filed by the Company with the Commission in accordance with the
SRP Merger Agreement.
Pursuant to the SRP Merger Agreement, all expenses incident to the
registration and qualification of the Shares, including
registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and disbursements
of counsel to Mr. Paolino (up to $2,000 per year), underwriting
expenses (other than commissions or discounts), expenses of any
audits, and expenses of complying with he securities or "blue sky"
laws of any jurisdictions, will be borne by the Company.
The SRP Merger Agreement provides that the Company will indemnify
Mr. Paolino against any and all losses, claims, damages, and
liabilities (collectively a "Liability") to which Mr. Paolino may
become subject under the Securities Act, and state securities or
"blue sky" law, any other statute, or at common law, insofar as
such Liability (or action in respect thereof) arises out of or is
based upon (i) any untrue statement or alleged untrue statement of
any material fact contained in this Prospectus, the Registration
Statement of which this Registration Statement is a part, or any
amendment or supplement thereto or (ii) any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The indemnity from the Company also covers amounts
incurred in investigating and defending against any litigation or
claim based upon such untrue statement or omission, or alleged
untrue statement or omission. The indemnity from the Company does
not cover untrue statements and omissions made in reliance upon
and in conformity with written information furnished to the
Company by Mr. Paolino expressly for use in this Prospectus, the
Registration Statement of which this Prospectus is a part, or any
amendment or supplement thereto.
Mr. Paolino sold 100,000 shares of Common Stock to each of Mr.
Moorehead and Shelley Moorehead, Mr. Moorehead's spouse in
February 1995 in a private transaction at a price of $15.00 per
share.
Registration Rights Agreements
In connection with the acquisition of certain of the assets of
Watts in September 1994, the Company and Watts entered into two
Registration Rights and Lock-Up Agreements dated September 9, 1994
(the "Registration Rights Agreements") covering 786,000 shares and
228,000 shares of Common Stock, respectively. In the Registration
Rights Agreements, the Company agreed to use its best efforts to
register the Watts Shares under the Securities Act and applicable
state securities laws and to maintain such registration for a
period of three years from the effective date of the registration
statement, or such other period that terminates on the earlier of:
(i) a date specified by Watts or (ii) the date all shares covered
by the registration statement have been sold or withdrawn. The
Registration Statement of which this Prospectus is a part was
filed by the Company with the Commission in accordance with the
Registration Rights Agreements.
Pursuant to the Registration Rights Agreements, all expenses
incident to the registration and qualification of the Watts
Shares, including registration and filing fees, printing expenses,
fees and disbursements of counsel for the Company, fees and
disbursements of counsel to Watts, underwriting expenses (other
than commissions or discounts), expenses of any audits, and
expenses of complying with he securities or "blue sky" laws of any
jurisdictions, will be borne by the Company.
14
The Registration Rights Agreements provide that the Company will
indemnify Watts against any and all losses, claims, damages, and
liabilities (collectively a "Liability") to which Watts may become
subject under the Securities Act, and state securities or "blue
sky" law, any other statute, or at common law, insofar as such
Liability (or action in respect thereof) arises out of or is based
upon (i) any untrue statement or alleged untrue statement of any
material fact contained in this Prospectus, the Registration
Statement of which this Registration Statement is a part, or any
amendment or supplement thereto or (ii) any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. The indemnity from the Company also covers amounts
incurred in investigating and defending against any litigation or
claim based upon such untrue statement or omission, or alleged
untrue statement or omission. The indemnity from the Company does
not cover untrue statements and omissions made in reliance upon
and in conformity with written information furnished to the
Company by Watts expressly for use in this Prospectus, the
Registration Statement of which this Prospectus is a part, or any
amendment or supplement thereto.
Watts agreed in the Registration Rights Agreements that (i) Watts
will not voluntarily offer to sell, sell, or otherwise dispose of
any of the Watts Shares prior to March 9, 1995, without the prior
written consent of the Company expect pursuant to a Qualifying
Registration Statement (as defined therein) and (ii) Watts will
not voluntarily offer to sell, sell or otherwise dispose of more
than 507,000 of the Watts Shares prior to September 5, 1995,
without the prior written consent of the Company except pursuant
to a Qualifying Registration Statement. The Registration Statement
of which this Prospectus is a part is a Qualifying Registration
Statement within the meaning of the Registration Rights
Agreements.
First Southwest received the 20,000 shares of Common Stock as
partial payment for investment banking services performed for the
Company in connection with the Company's acquisition of certain of
the assets of Watts. First Southwest has transferred 6,000 shares
to each of Messrs. Jennings and Cook as compensation for services
rendered.
[CAPTION]
LEGAL MATTERS
Certain legal matters in connection with the Shares have been
passed upon for the Company by Snell & Smith, A Professional
Corporation, Houston, Texas.
[CAPTION]
EXPERTS
The consolidated financial statements of the Company as of December
31, 1993 and 1994, and for each of the three years in the period
ended December 31, 1994, incorporated by reference in this
Prospectus, have been incorporated be reference herein in reliance
on the reports of Coopers & Lybrand, L.L.P., independent
accountants, given on the authority of that firm as experts in
accounting and auditing.
The consolidated financial statements of Envirofil for the year
ended June 30, 1993 referred to in this Prospectus, and the
combined financial statements of the Acquired New Jersey Solid
Waste Companies as of December 31, 1992 and 1993 and for each of
the three years in the period ended December 31, 1993,
incorporated into this Prospectus by reference to Envirofil, Inc's
Form 8-K filed with the Commission on February 28, 1994, as
amended by Envirofil, Inc's Form 8-K/A filed with the Commission
on May 11, 1994, have been incorporated herein in reliance upon
the authority of Arthur Andersen L.L.P., independent public
accountants, given on the authority of that firm as experts in
accounting and auditing in giving said report.
The consolidated financial statements of Chambers at December 31,
1993 and 1994, and for each of the three years in the period ended
December 31, 1994, incorporated by reference in this Prospectus
have been audited by Deloitte & Touche LLP, independent auditors,
as stated in their reports, which are incorporated be reference
herein, and have been so included in reliance upon their authority
as experts in accounting and auditing.
No dealer, salesman, or any other person has been authorized to
give any information or to make any representations other than
those contained in this Prospectus in connection with the offering
contained herein, and, if given or made, such information or
representations must not be relied upon as having been authorized
by the Company or the Selling Shareholders. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to
buy any of the securities offered hereby to any person to whom it
is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale hereunder shall, under
any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof.
4,292,967 Shares
USA WASTE SERVICES, INC.
COMMON STOCK
PROSPECTUS
May , 1995
P-I
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection
with the distribution of the securities covered by this
Registration Statement.
Securities and Exchange Commission fee $ 6,992
Printing expenses 1,000
Accountants' fees and expenses 5,000*
Blue sky fees and expenses 0
Legal fees and expenses 10,000*
Miscellaneous 1,000*
______
Total $23,992*
======
*Estimated.
Item 15. Indemnification of Directors and Officers.
Section 1006-B(7) of the Oklahoma General Corporation Law provides in part:
B. In addition to the matters required to be set forth in the
certificate of incorporation pursuant to the provisions of
subsection A of this section, the certificate of incorporation may
also contain any or all of the following matters:
7. A provision eliminating or limiting the personal liability of a
director to the corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director, provide that
such provision shall not eliminate or limit the liability of a
director:
a. for any breach of the director's duty of loyalty to the
corporation or its shareholders; or
b. for acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law; or
c. under Section 1053 of this title; or
d. for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to
the date when such provision becomes effective.
Section 1031 of the Oklahoma General Corporation Law provides:
1031. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS;
INSURANCE. A. A corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including
attorneys' fees, judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
B. A corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
C. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
subsection A or B of this section, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him
in connection therewith.
D. Any indemnification under the provisions of subsection A or B of
this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsection A
or B of this section. Such determination shall be made:
1. by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit
or proceeding; or
2. if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
3. by the shareholders.
E. Expenses incurred by an officer or director in defending a civil
or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized by the provisions of this
section. Such expenses incurred by other employees and agents may
be so paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
F. The indemnification and advancement of expense provided by or
granted pursuant to the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
G. A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was
servicing at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under
the provisions of this section.
H. For purposes of this section, references to ``the corporation''
shall include, in addition to the resulting corporation, any
constituent corporation, including any constituent of a
constituent, absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
I. For purposes of this section, references to ``other
enterprises'' shall include employee benefit plans; references to
``fines'' shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to ``serving
at the request of the corporation'' shall include any service as
a director, officer, employee or agent of the corporation which
imposes duties on, or involves services, by such director,
officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner ``not
opposed to the best interests of the corporation'' as referred to
in this section.
J. The indemnification and advancement of expenses provided by or
granted pursuant to this section, unless otherwise provided when
authorized or ratified, shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
Articles Seventh and Eighth of the Registrant's Certificate of
Incorporation provide:
SEVENTH. The Corporation shall indemnify, and advance litigation
expenses to, its officers, directors, employees and agents to the
fullest extent permitted by the Oklahoma General Corporation Act
and all other laws of the State of Oklahoma.
EIGHTH. To the fullest extent that the Oklahoma General Corporation
Act as its exists on November 1, 1987 (the effective date of
amendments to the Oklahoma General Corporation Act authorizing
provisions limiting liability of directors) (``Effective Date''),
permits the limitation of elimination of the liability of
directors, no director of this Corporation shall be liable to this
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director. No amendment to or repeal of this
Article [EIGHTH] shall apply to or have any effect on the
liability or alleged liability of any director of this Corporation
for or with respect to any acts or omission of such director
occurring prior to the time of such amendment or repeal.
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 or
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.
Item 16. Exhibits.
4.1 Certificate of Incorporation, as amended [Incorporated by
reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form S-18, file No. 33-20737-FW].
4.2 Bylaws, as amended [Incorporated by reference to Exhibit
3.2 of the Registrant's Registration Statement on Form S-18,
File No. 33-20237-FW].
4.3 Specimen Stock Certificate. [Incorporated by reference to
Exhibit 4.3 to the Registrant's Registration Statement on
Form S-3 (File No. 33-76224].
* 5 Opinion of Snell & Smith, A Professional Corporation.
23.1 Consent of Snell & Smith, A Professional Corporation
(Included in Exhibit 5).
23.2 Consent of Coopers & Lybrand, L.P.P. [Incorporated by
reference to Exhibit 23.1 to the Registrant's Annual
Report of Form 10-K for the year ended December 31, 1994,
as amended by Form 10-K/A].
23.3 Consent of Arthur Andersen L.L.P. (Incorporated by
reference to Exhibit 23.2 to the Registrant's Annual
Report of Form 10-K for the year ended December 31, 1994,
as amended by Form 10-K/A)
23.4 Consent of Deloitte & Touche, LLP [Incorporated by reference to
Exhibit 23.2 to the Regsitrant's Registration Statement on
Form S-4 (Registration No. 33-59259].
*24 Powers of Attorney (Included on Page II-6).
__________________
*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.
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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 paragraph (a)(1)(i) and (a)(1)(ii) shall
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 such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 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 herein, 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 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 is 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 or
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
pinion 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.
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment to registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on May 11, 1995.
USA Waste Services, Inc.
By Earl E. DeFrates
Earl E. DeFrates
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on May 11, 1995.
Signature Title
Donald F. Moorehead, Jr.* Chairman of the Board and
Donald F. Moorehead, Jr. Chief Development Officer
John E. Drury* Chief Executive Officer
John E. Drury and Director
David Sutherland-Yoest* President, Chief Operating Officer
David Sutherland-Yoest and Director
Earl E. DeFrates Executive Vice President, Chief
Earl E. DeFrates Financial Officer, Secretary,
Treasurer and a Director
Bruce E. Snyder Vice President, Controller and
Bruce E. Snyder Chief Accounting Officer
Robert A. Mosley* Director
Robert A. Mosley
John D. Spellman* Director
John D. Spellman
Gene A. Meredith* Director
Gene A. Meredith
* By Earl E. DeFrates
Earl E. DeFrates, Agent
and Attorney-in-Fact
