As filed with the Securities and Exchange Commission on December 31, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-------------------------
WASTE MANAGEMENT, INC.
(Exact name of Registrant as specified in its charter)
Delaware 73-1309529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1001 Fannin Street
Suite 4000
Houston, Texas 77002
(713) 512-6200
(Address, including zip code, and telephone number, including area
code of Registrant's principal executive offices)
-------------------------
Eastern Environmental Services, Inc. 1997 Stock Option Plan;
Eastern Environmental Services, Inc. Amended
and Restated 1996 Stock Option Plan;
Eastern Environmental Services, Inc. 1991 Stock Option Plan
(Full titles of the Plans)
-------------------------
Gregory T. Sangalis
Waste Management, Inc.
1001 Fannin Street
Suite 4000
Houston, Texas 77002
(713) 512-6200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
========================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share (1) 1,043,480 (2) $22.76(2) $23,749,605 $6,602.39
========================================================================================================================
(1) This Registration Statement on Form S-8 relates to shares of Common
Stock, par value $.01 per share (the "Common Stock"), of Waste
Management, Inc. (the "Registrant"). Such shares are issuable pursuant
to the above-referenced plans in substitution for shares of Common
Stock, par value $0.01 per share, of Eastern Environmental Services,
Inc. ("Eastern"), a wholly-owned subsidiary of the Registrant, which
plans were assumed by the Registrant upon the effective time of the
merger of a subsidiary of the Registrant with and into Eastern (the
"Merger") on December 31, 1998.
(2) Estimated solely for the purpose of calculating the registration fee.
Such estimate is calculated pursuant to Rules 457(c) and 457(h) under
the Securities Act of 1933, as amended (the "Securities Act"), based on
the weighted average exercise price of the options previously granted
under the Eastern Environmental Services, Inc. 1997 Stock Option Plan;
the Eastern Environmental Services, Inc. Amended and Restated 1996
Stock Option Plan and the Eastern Environmental Services, Inc. 1991
Stock Option Plan.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- ----------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended, and the
"Note" to Part I of Form S-8.
2
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant (formerly known as USA Waste
Services, Inc.) are hereby incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) Quarterly Report on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 (as amended on Form 10-Q/A filed on August 28,
1998) and September 30, 1998.
(c) Current Reports on Form 8-K dated March 12, 1998; July 16,
1998; July 17, 1998 (as amended on Form 8-K/A filed on August 12,
1998); August 17, 1998; September 22, 1998; September 23, 1998 and
October 8, 1998.
(d) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on July 1, 1993, as amended on
Form 8-B filed with the Commission on July 13, 1995.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
incorporated by reference herein modifies or supersedes 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 Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law ("DGCL")
allows a corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his or her duty
of loyalty to the corporation or its stockholders, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of the law, willfully
or negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit. The Registrant's Restated Certificate of Incorporation (the "Charter")
contains a provision which eliminates directors' personal liability as set forth
above.
The Charter and the Bylaws of the Registrant provide in effect
that the Registrant shall indemnify its directors and officers, and may
indemnify its employees and agents, to the extent permitted by the DGCL. Section
145 of the DGCL provides that a Delaware corporation has the power to indemnify
its directors, officers, employees and agents in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a
corporation to indemnify any director, officer, employee or agent, or former
director, officer, employee or agent 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), against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding provided
that such director, officer, employee or agent acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director, officer, employee or agent had no
reasonable cause to believe that his or her conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a
corporation to indemnify any director, officer, employee or agent, or former
director, officer, employee or agent, who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person acted in any of the capacities set forth above, against
expenses (including attorney's fees), actually and reasonably incurred in
connection with the defense or settlement of such action or suit provided that
such person acted in good faith and in a manner he or she reasonable believed to
be in or not opposed to the best interest of the corporation, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery shall determine that despite the
adjudication of liability such person is fairly and reasonable entitled to
indemnity for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that, to the extent
that a director or officer of a corporation has been successful in the defense
of any action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 of the DGCL or in the defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonable incurred by him or her in connection therewith; that
indemnification provided by Section 145 of the DGCL shall not be deemed
exclusive of any other rights to which the party seeking indemnification may be
entitled; and the corporation is empowered to purchase and maintain insurance on
behalf of a director, officer, employee or agent of the corporation against any
liability asserted against him or her or incurred by him or her in any
4
such capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145 of the DGCL; and that, unless indemnification is
ordered by a court, the determination that indemnification under subsections (a)
and (b) of Section 145 of the DGCL is proper because the director, officer,
employee or agent has met the applicable standard of conduct under such
subsections shall be made to a person who is or director or officer at the time
or such determination (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders.
The Registrant has purchased certain liability insurance for
its officers and directors as permitted by Section 145(g) of the DGCL.
The Registrant has entered into Indemnification Agreements
with certain of its directors and executive officers. Such Indemnification
Agreements provide that such persons (the "Indemnitees") will be indemnified and
held harmless from all expenses, including (without limitation) reasonable fees
and expenses of counsel, and all liabilities, including (without limitation) the
amount of any judgements, fines, penalties, excise taxes and amounts paid in
settlement, actually incurred by an Indemnitee with respect to any threatened,
pending or completed claim, action (including any action by or in the right of
the Registrant), suit or proceeding (whether formal or informal, or civil,
criminal, administrative, legislative, arbitrative or investigative) in respect
of which such Indemnitee is, was or at any time becomes, or is threatened to be
made, a party, witness, subject or target, by reason of the fact that such
Indemnitee is or was a director, officer, agent or fiduciary of the Registrant
or serving at the request of the Registrant as a director, officer, employee,
fiduciary or representative of another enterprise. Such Indemnification
Agreements also provide that the Registrant, if requested to do so by an
Indemnitee, will advance to such Indemnitee, prior to final disposition of any
proceeding, the expenses actually incurred by the Indemnitee subject to the
obligation of the Indemnitee to refund if it is ultimately determined that such
Indemnitee was not entitled to indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
4.1 Eastern Environmental Services, Inc. 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.67 to Eastern's Form
10-Q for the quarter ended December 31, 1997).
4.2 Eastern Environmental Services, Inc. Amended and Restated 1996
Stock Option Plan (incorporated by reference to Exhibit 4 to
Eastern's Registration Statement on Form S-8, File No.
333-28627, filed on June 6, 1997, as subsequently amended on
June 18, 1997).
5
4.3 Eastern Environmental Services, Inc. 1991 Stock Option Plan
(incorporated by reference to Exhibit 10.5 to Eastern's Form
10-K for the Transition Period from July 1, 1997 to December
31, 1997).
4.4 Restated Certificate of Incorporation of Registrant, as
amended (incorporated by reference to Exhibit 3.2 to the
Registrant's Current Report on Form 8-K dated July 16, 1998).
4.5 By-laws (incorporated by reference to Exhibit 3.2 to the
Post-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-4, File No. 33-60103).
4.6 Agreement and Plan of Merger (previously filed as Annex A to
the proxy statement/prospectus included in the Registrant's
Registration Statement on Form S-4 (File No. 333-64239) filed
on September 29, 1998).
5.1 Opinion of Shearman & Sterling regarding the legality of the
Common Stock being registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities Act"), each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
6
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement on Form S-8 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas on the 31st day of December, 1998.
WASTE MANAGEMENT, INC.
(Registrant)
By: /s/ John E. Drury
----------------------------
John E. Drury
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and executive officers of WASTE
MANAGEMENT, INC., hereby severally constitute John E. Drury, Earl E. DeFrates
and Gregory T. Sangalis and each of them singly, our true and lawful attorneys
with full power to them and each of them to sign for us, and in our names in the
capacities indicated below, any and all amendments to the registration statement
filed with the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys to any and
all amendments to said registration statement.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement on Form S-8 has been signed by the following persons
in the capacities indicated on the 31st day of December, 1998.
Signature Title
- --------- -----
/s/ John E. Drury Chief Executive Officer and Director
- ------------------------------- (Principal Executive Officer)
John E. Drury
/s/ Rodney R. Proto President, Chief Operating Officer and
- ------------------------------- Director
Rodney R. Proto
/s/ Earl E. DeFrates Executive Vice President and Chief
- ------------------------------- Financial Officer (Principal Financial
Earl E. DeFrates Officer)
/s/ Bruce E. Snyder Vice President and Chief Accounting
- ------------------------------- Officer (Controller/Principal
Bruce E. Snyder Accounting Officer)
Signature Title
- --------- -----
- ------------------------------- Director
H. Jesse Arnelle
- ------------------------------- Director
Dr. Pastora San Juan Cafferty
- ------------------------------- Director
Ralph F. Cox
/s/ Richard J. Heckmann Director
- -------------------------------
Richard J. Heckmann
/s/ Roderick M. Hills Director
- -------------------------------
Roderick M. Hills
- ------------------------------- Director
Richard D. Kinder
- ------------------------------- Director (Non-Executive Chairman of
Robert S. Miller the Board)
/s/ Paul M. Montrone Director
- -------------------------------
Paul M. Montrone
/s/ John C. Pope Director
- -------------------------------
John C. Pope
/s/ Steven G. Rothmeier Director
- -------------------------------
Steven G. Rothmeier
/s/ Ralph V. Whitworth Director
- -------------------------------
Ralph V. Whitworth
- ------------------------------- Director
Jerome B. York
9
Exhibit Index
Exhibit No. Description of Document
4.1 Eastern Environmental Services, Inc. 1997 Stock Option Plan
(incorporated by reference to Exhibit 10.67 to Eastern's Form
10-Q for the quarter ended December 31, 1997).
4.2 Eastern Environmental Services, Inc. Amended and Restated 1996
Stock Option Plan (incorporated by reference to Exhibit 4 to
Eastern's Registration Statement on Form S-8, File No.
333-28627, filed on June 6, 1997, as subsequently amended on
June 18, 1997).
4.3 Eastern Environmental Services, Inc. 1991 Stock Option Plan
(incorporated by reference to Exhibit 10.5 to Eastern's Form
10-K for the Transition Period from July 1, 1997 to December
31, 1997).
4.4 Restated Certificate of Incorporation of Registrant, as
amended (incorporated by reference to Exhibit 3.2 to the
Registrant's Current Report on Form 8-K dated July 16, 1998).
4.5 By-laws (incorporated by reference to Exhibit 3.2 to the
Post-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-4, File No. 33-60103).
4.6 Agreement and Plan of Merger (previously filed as Annex A to
the proxy statement/prospectus included in the Registrant's
Registration Statement on Form S-4 (File No. 333-64239) filed
on September 29, 1998).
5.1 Opinion of Shearman & Sterling regarding the legality of the
Common Stock being registered hereby.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page).
EXHIBIT 5.1
EXHIBIT 5.1
[LETTERHEAD OF SHEARMAN & STERLING]
December 30, 1998
Waste Management, Inc.
1001 Fannin Street
Suite 4000
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as special counsel to Waste Management, Inc., a
Delaware corporation ("Waste Management"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") being filed by Waste
Management on December 31, 1998 with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to 1,043,480 shares
of common stock, par value $.01 per share, of Waste Management (the "Common
Stock"), to be issued from time to time pursuant to the Eastern Environmental
Services, Inc. 1997 Stock Option Plan; the Eastern Environmental Services, Inc.
Amended and Restated 1996 Stock Option Plan and the Eastern Environmental
Services, Inc. 1991 Stock Option Plan.
In so acting, we have examined the Registration Statement and
we have also examined and relied as to factual matters upon the representations
and warranties contained in originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments as in our judgment are necessary or
appropriate to be able to render the opinion expressed below. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, certificates and instruments submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that the
shares of Common Stock to which the Registration Statement relates have been
duly authorized and, when issued and delivered in accordance with the terms of
the applicable plan and paid for in full in accordance with the terms of the
applicable plan, will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware and we do not express any opinion
herein concerning any other law.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ SHEARMAN & STERLING
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference of our report on Waste Management, Inc. dated
September 23, 1998 included in Waste Management, Inc.'s Current Report on Form
8-K dated September 23, 1998 in this Registration Statement on Form S-8 and
related Prospectus of Waste Management, Inc. and to all references to our Firm
included in or incorporated by reference in this Registration Statement.
/s/ Arthur Andersen LLP
Houston, Texas
December 30, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8, relating to the Eastern Environmental Services, Inc. 1997
Stock Option Plan, the Eastern Environmental Services, Inc. Amended and Restated
1996 Stock Option Plan and the Eastern Environmental Services, Inc. 1991 Stock
Option Plan, of our report dated March 16, 1998, on our audits of the
consolidated financial statements of USA Waste Services, Inc. (now known as
Waste Management, Inc.) as of December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Houston, Texas
December 30, 1998
